Terms and Conditions

Application and Entire Agreement

1. These Terms and Conditions apply to the provision of the services detailed in our Proposal (Services) by Make Asset Management LTD a company registered in England and Wales under number 15187726 whose registered office is at 79 Lodge Crescent, Hagley, West Midlands, DY9 0ND (we or us) to the person buying the services (you or Customer).
   

2. You are deemed to have accepted these Terms and Conditions when you accept our Proposals or from the date of any performance of the Services (whichever happens earlier) and these Terms and Conditions and our Proposal (the Contract) are the entire agreement between us.
   

3. You acknowledge that you have not relied on any statement, promise or representation made or given by or on our behalf. These Terms and Conditions apply to the Contract to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
   
   

   Interpretation

4. A "business day" means any day other than a Saturday, Sunday or bank holiday in England and Wales.

5. The headings in these Terms and Conditions are for convenience only and do not affect their interpretation.

6. Words imparting the singular number shall include the plural and vice-versa.

7. “Services” means the services that we will provide to you as set out in our Proposal.

8. “Proposal” means the proposal or quotation provided to you by us in which we set out the Services and Fees payable by you.
   
   
   Services

9. We warrant that we will use reasonable care and skill in our performance of the Services which will comply with the Proposal, including any specification in all material respects. We can make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.

10. We will use our reasonable endeavours to complete the performance of the Services within the time agreed or as set out in the Proposal; however, time shall not be of the essence in the performance of our obligations.

11. All of these Terms and Conditions apply to the supply of any goods as well as Services unless we specify otherwise.
    
    
    Your Obligations

12. You must obtain any permissions, consents, licences or otherwise that we need and must give us with access to any and all relevant information, materials, properties and any other matters which we need to provide the Services.

13. You must co-operate with us in all matters relating to the Services.

14. You must provide us, our employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities as reasonably required by us.

15. You must provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects.

16. You must keep all materials, equipment, documents and other property of ours (Service Materials) at your premises in safe custody at your own risk, maintain the Service Materials in good condition until returned to us , and not dispose of or use the Service Materials other than in accordance with our  written instructions or authorisation.

17. If our performance of any of our obligations, including provision of the Services, under the Contract is prevented or delayed by any act or omission by you or failure by you to perform any relevant obligation (Customer Default):
    
    A. without limiting or affecting any other right or remedy available to it, we shall have the right to suspend performance of the Services until you  remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of  our obligations in each case to the extent the Customer Default prevents or delays our performance of any of its obligations;

    B. we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of its obligations as set out in this Clause 17; and

    C. you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
    

18. If you do not comply with clauses 12-17, we can terminate the Services.
    

19. We are not liable for any delay or failure to provide the Services if this is caused by your failure to comply with the provisions of this section (Your obligations).
    
    
    Fees

20. The fees (Fees) for the Services are set out in the Proposal and are on a time and/or percentage and materials basis.

21. In addition to the Fees, we can recover from you a) reasonable incidental expenses including, but not limited to, property listing and advertising costs, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials required for the provision of the Services.

22. You must pay us for any additional services provided by us that are not specified in the Proposal in accordance with our then current, applicable hourly rate in effect at the time of performance or such other rate as may be agreed between us.  The provisions of clauses 12-17 also apply to these additional services.

23. The Fees are exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any are competent authority.
    
    
    Cancellation and Amendment

24. We can withdraw, cancel or amend a Proposal if it has not been accepted by you, or if the Services have not started, within a period of 30 days from the date of the Proposal, (unless the Proposal has been withdrawn).

25. Either we or you can cancel an order for any reason prior to your acceptance (or rejection) of the Proposal.

26. If you want to amend any details of the Services you must tell us in writing as soon as possible. We will use reasonable endeavours to make any required changes and additional costs will be included in the Fees and invoiced to you.

27. If, due to circumstances beyond our control, including those set out in the clause below (Circumstances beyond a party's control), we have to make any change in the Services or how they are provided, we will notify you immediately. We will use reasonable endeavours to keep any such changes to a minimum.
    
    
    Payment

28. We will invoice you for payment of the Fees either:

    A. when we have completed the Services; or

    B. on the invoice dates set out in the Proposal. You must pay the Fees due within terms agreed between us 14 days of the date of our invoice or otherwise in accordance with any credit

29. Time for payment shall be of the essence of the Contract.

30. We reserve the right to increase the Fees on an annual basis with effect from each anniversary of the date these Terms and Conditions are accepted in accordance with clause 2, in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the date these Terms and Conditions are accepted and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

31. Without limiting any other right or remedy we have for statutory interest, if you do not pay within the period set out above, we will charge you interest at the rate of 5% per annum above the base lending rate of the Bank of England from time to time on the amount outstanding until payment is received in full.

32. All payments due under these Terms and Conditions must be made in full without any deduction or withholding except as required by law and neither of us can assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.

33. If you do not pay within the period set out above, we can suspend any further provision of the Services and cancel any future services which have been ordered by, or otherwise arranged with, you.

34. Receipts for payment will be issued by us only at your request.

35. All payments must be made in British Pounds unless otherwise agreed in writing between us.
    
    
    Sub-contracting and Assignment

36. We can at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions and can subcontract or delegate in any manner any or all of our obligations to any third party.

37. You must not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions.
    
    
    Termination

38. Without affecting any other right or remedy available to us, we or you may terminate the Contract by giving one month’s written notice.

39. We can terminate the provision of the Services immediately if you:

    A. undergo a change of control; or

    B. commit a material breach of your obligations under these Terms and Conditions; or

    C. fail to make pay any amount due under the Contract on the due date for payment; or

    D. are or become or, in our reasonable opinion, are about to become, the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtor; or

    E. enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors; or

    F. convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part of them, any documents are filed with the court for the appointment of an administrator in respect of you, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for your winding up or for the granting of an administration order in respect of you, or any proceedings are commenced relating to your insolvency or possible insolvency.
    
    
    Consequences of Termination

40. On termination or expiry of the Contract:

    A. you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by  you immediately on receipt; and

    B. you shall return all of the Service Materials and any other equipment supplied by us which have not been fully paid for. If  you fail to do so, then we may enter your premises and take possession of them. Until they have been returned,  you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

41. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or 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.

42. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
    
    
    Intellectual Property

43. We reserve all copyright and any other intellectual property rights which may subsist in any goods supplied in connection with the provision of the Services. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.

44. You acknowledge that you have no right, title or interest in or to such intellectual property rights other than as permitted by law.

45. You grant to us a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by you to us for the term of the Contract for the purpose of providing the Services to you. 

    
    
    Liability and Indemnity

46. Our liability under these Terms and Conditions, whether for breach of contract or statutory duty, in tort or misrepresentation or otherwise, shall be limited as set out in this section.

47. The total amount of our liability is limited to the total amount of Fees payable by you under the Contract.

48. We are not liable (whether caused by our employees, agents or otherwise) in connection with our provision of the Services or the performance of any of our other obligations under these Terms and Conditions or the Proposal for:

    A. any indirect, special or consequential loss, damage, costs, or expenses or;

    B. any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; or

    C. any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; or

    D. any losses caused directly or indirectly by any failure or your breach in relation to your obligations; or

    E. any losses arising directly or indirectly from the choice of Services and how they will meet your requirements or your use of the Services or any goods supplied in connection with the Services.

49. You must indemnify us against all damages, costs, claims and expenses suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.

50. Nothing in these Terms and Conditions shall limit or exclude our liability for death or personal injury caused by our negligence, or for any fraudulent misrepresentation, or for any other matters for which it would be unlawful to exclude or limit liability.
    
    
    Data Protection

51. When supplying the Services to you, we may gain access to and/or acquire the ability to transfer, store or process personal data of your employees. 

52. The parties agree that where such processing of personal data takes place, you shall be the 'data controller' and we shall be the 'data processor' as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.

53. For the avoidance of doubt, 'Personal Data', 'Processing', 'Data Controller', 'Data Processor' and 'Data Subject' shall have the same meaning as in the GDPR.

54. We shall only Process Personal Data to the extent reasonably required to enable us to supply the Services as mentioned in these Terms and Conditions or as requested by and agreed with you, shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for our own or for any third party's purposes.

55. We shall not disclose Personal Data to any third parties other than employees, directors, agents, sub- contractors or advisors on a strict 'need-to-know' basis and only under the same (or more extensive) conditions as set out in these Terms and Conditions or to the extent required by applicable legislation and/or regulations.

56. We shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by us on your behalf. 

57. Further information about our approach to data protection are specified in its Data Protection Policy, which can be found on our website. For any enquiries or complaints regarding data privacy, you can email: jo@makeam.co.uk.
    
    
    Circumstances Beyond a Party's Control

58. Neither of us is liable for any failure or delay in performing our 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: 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. If the delay continues for a period of 90 days, either of us may terminate or cancel the Services to be carried out under these Terms and Conditions by giving 30 days’ written notice to the affected party.
    
    
    Communications

59. All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).

60. Notices shall be deemed to have been duly given:

    A. when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;

    B. when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;

    C. on the second business day following mailing, if mailed by national ordinary mail; or

    D. on the tenth business day following mailing, if mailed by airmail.

61. All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
    
    
    Confidentiality

62. Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or service providers of the other party, except as permitted by Clause 63. Use of non-confidential information for marketing purposes is permitted with prior consent of the parties.

63. Each party may disclose the other party’s confidential information:

    A. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 62; and

    B. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

64. Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
    
    
    No waiver

65. No delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy nor stop further exercise of any other right, or remedy.
    
    
    Severance

66. If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions will be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
    
    
    Law and Jurisdiction

67. These Terms and Conditions shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Terms and Conditions (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.