TERMS & CONDITIONS

TERMS & CONDITIONS

1. Interpretation
   • In these conditions the following definitions apply:

• The headings of conditions are for convenience of reference only and shall not affect their interpretation.
• Any words following the term “including” or “include” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. Enquiry
   • If you request us to provide you with any Services we will discuss your requirements with you and, if we are willing and able to provide the Services, we will as soon as is reasonably practicable prepare a quotation setting out our likely fee and timescales to complete the work. Quotations are subject to change at any time before the Contract comes into existence.
   • The Order constitutes an offer to purchase the Services in accordance with these conditions. No Order shall be deemed to be accepted other than:
     • by written acknowledgement issued by us; or
     • (if earlier) by us starting to provide the Services.

3. contracts
   • These conditions shall be incorporated in all Contracts to the exclusion of all other terms or conditions whether expressly referred to by you in your Order or which are implied by law, trade, custom, practice or course of dealings (save for those implied terms that cannot be excluded at law). These conditions supersede any previous conditions we have issued.  Your acceptance (or acceptance on your behalf) of any delivery or performance by us shall in any event be conclusive evidence of your acceptance of these conditions.
   • Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our marketing material, are issued or published for the sole purpose of giving an approximate idea of the services described in them and shall not form part of the Contract.
   • Each Contract supersedes all previous oral and written communications between us and you.
   • These conditions override any terms and conditions or representations put forward by any of our employees, agents or consultants and no amendment or variation to the Contract shall be effective unless agreed by us in writing and signed by a director of CENSolutions Ltd.
4. services
   • Timescales given for completion of the Services are estimates only and are subject to the supply of all proper, necessary and timely instructions, authority, information (including the execution of all documents required), resources and compliance with condition 5 to enable us to undertake lawfully and effectively the Services instructed. We shall not be liable for loss, damage or expense arising from any delay or failure in delivery or performance caused by or arising from your failure or delay to provide proper instructions, documents, other materials or to comply with condition 5.  No such delay or failure shall entitle you to refuse to accept any delivery or performance or repudiate the Contract.
   • We will provide the Services to you on a non-exclusive basis and may supply services that are the same as, or comparable to the Services to any third party.
   • We may accept orders and instructions from any person with ostensible authority to act on your behalf.
   • We warrant to you that the Services will be provided using reasonable care and skill.
   • We may at any time refuse Certification or revoke, suspend or terminate Certification where, in our reasonable opinion, compliance with the Specified Standard or the Contract has not been or is no longer being met.
5. Your obligations
   • You shall:
     • cooperate with us in all matters relating to the Services;
     • allow us full access to all applicable and relevant work areas, personnel, records and documentation; and
     • provide us with such information and materials as we may reasonably require in order to supply the Services, and ensure that such information is accurate and representative in all material respects.

6. consultancy and quality systems
   • We will:
     • visit your premises and review and discuss with you the quality systems that you have in place; and
     • prepare a Manual based on (i) the information you provide to us and (ii) any improvements we suggest as being necessary to meet the Specified Standard and improve quality.
   • You warrant that you will follow and comply with the processes and procedures in the Manual.
   • You shall ensure that your employees and, as applicable, your agents and subcontractors are fully trained in accordance with the applicable requirements of the Manual.
   • You may make modifications to the Manual providing that any such modifications:
     • comply with the Specified Standard;
     • are made in accordance with the processes and procedures set in the Manual for making modifications to the Manual; and
     • are correctly recorded within the “Document Amendment” section of the Manual.

The suitability of any such modifications shall be assessed during the subsequent audit conducted in accordance with condition 7.

• You shall ensure that the Manual is kept up to date with any changes made to the Specified Standard. Any modifications must be made in accordance with condition 6.4.  If, based on our assessment of your modifications, we deem it necessary to make amendments to the Manual to bring it into compliance with the changes to the Specified Standard we will do so and the Fee will be charged to you in accordance with condition 11. .

7. audit
   • We will audit or assess your quality system by visiting your premises at the appropriate intervals as defined by the requirements of CENSolutions certification scheme.
   • The duration of audits shall be at our reasonable discretion.
   • You will provide such evidence as we may require to demonstrate compliance with the Manual and the Specified Standard.
   • Based on our audit findings we will give you a score corresponding to your level of compliance with the Manual and the Specified Standard. Your level of compliance will determine the outcome of the audit as follows:

• If your level of compliance is assessed at an audit to be Amber within 2 months of that audit we shall require corrective action to be taken and shall require a further visit (at a date to be agreed within 2 months of the audit) for us to ensure that you have taken adequate corrective action. If you have taken adequate corrective action the suspension of your Certification shall be lifted.  If you have not taken adequate corrective action then the provisions of condition 7.9 shall apply.  The Fee for the audit and further visit shall be charged to you in accordance with condition 11.
• If you make any changes to your quality systems and/or if there is a change in any person involved in the direction, control or ownership of your business you must advise us in writing. We reserve the right to require a surveillance visit to ascertain whether the change has had any effect on your quality systems.  If, following a surveillance visit, your level of compliance is assessed to be Amber your Certification is suspended as at the date of the surveillance visit pending a further visit.  Within 2 months of that surveillance visit we shall require corrective action to be taken and shall require a further visit (at a date to be agreed within 2 months of the surveillance visit) for us to ensure that you have taken adequate corrective action.  If you have taken adequate corrective action the suspension of your Certification shall be lifted.  If you have not taken adequate corrective action then the provisions of condition 7.9 shall apply.  The Fee for the surveillance visit and further visit shall be charged to you in accordance with condition 11.
• If, at any time, we reasonably believe that your compliance has dropped below the Specified Standard (whether as a result of complaints or otherwise) we reserve the right to require access to your premises and records to conduct an investigation.
• If on investigation your level of compliance is assessed to be:
  • Red, Certification is automatically withdrawn as at the date of the investigation and the provisions of condition 15.5 shall apply; or
  • Amber your Certification is suspended as at the date of the investigation pending a further visit. We shall within 2 months of that investigation require corrective action to be taken and shall set a timeframe within which such corrective action must be taken and shall require a further visit (at a date to be agreed within 2 months of the investigation) for us to ensure that you have taken adequate corrective action.  If you have taken adequate corrective action the suspension of your Certification shall be lifted.  If you have not taken adequate corrective action then the provisions of condition 7.9 shall apply; or
  • Green, Certification will be maintained in accordance with condition 8.

The Fee for the investigation and further visit shall be charged to you in accordance with condition 11.

• If your level of compliance is assessed to be Amber on three consecutive visits Certification is automatically withdrawn as at the date of the third visit and the provisions of condition 15.5 shall apply.
• Printed or pdf copies of our audit report will be supplied (i) on completion of the audit or (ii) if not practical or convenient to provide the audit report on completion of the audit, we will, on completion of the audit, talk you through the results of the audit and then email the audit report to you within 7 working days of completion of the audit.
• We would urge you in the case of Green Certification to aspire to 100% compliance.

8. Certification
   • For us to grant you Certification you shall demonstrate, to our satisfaction, compliance to the Specified Standard.
   • Certification will only be granted following completion of the first successful assessment. In order to maintain Certification you must comply with conditions 6.2, 6.3, 6.4, 6.5, 7 and 11.
   • Failure to comply with conditions 6.2, 6.3, 6.4, 6.5, 7 and 11 will result in automatic withdrawal of Certification.
   • On withdrawal of Certification condition 15.5 shall apply.
9. EXPERT EVIDENCE and EXPERT WITNESS
   • You will provide us with clear written instructions.
   • In providing expert services our over-riding duty is to the court of law, tribunal or body concerned with the process of arbitration or dispute resolution. We will act with objectivity, impartiality and independence in carrying out our instructions.
   • When instructed to report to a court of law we shall do so in compliance with the relevant requirements of the Civil Procedure Rules (including Practice Directions and any approved protocols) and within any timeline agreed with you or set by the court of law.
   • We may accept instructions from someone duly authorised to act on your behalf e.g. a solicitor or your insurer but you will at all times remain responsible to settle our Fee.
   • We may accept instructions from your end client relating to the products and services provided by you including in order to verify compliance by you with the Manual.
10. safety and insurance
    • You are responsible for ensuring that when we visit your site we have adequate protective equipment for the working environment to be assessed.
    • Where specialist training is required before entering any part of your site this shall be disclosed to us in advance of a site visit.
    • You shall effect and maintain with a reputable insurance company a policy or policies of insurance providing an adequate level of cover in respect of third party liability.
    • You shall, on request, provide us with copies of all insurance policies to demonstrate that appropriate cover is in place, together with receipts or other evidence of payment of the latest premiums due.
11. Fees and Charges
    • Our Fee shall be payable on the day of our visit or as otherwise specified on our invoice.
    • Time for payment shall be of the essence.
    • Where a scheduled visit is booked in advance, any subsequent change or cancellation requested by you may be subject to a discretionary charge, up to the full cost of the visit (including any expenses such as travel and accommodation which we have pre-booked to the extent such booking cannot conveniently be changed or cancelled)
    • We reserve the right at any time before completion of the Services to increase the Fee to reflect the cost of any additional work to that which you indicated at the time of request for Services.
    • You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding.
    • You shall pay all amounts due to us in full regardless of the outcome of any audit, visit, investigation or assessment.
    • Without prejudice to any of our other rights, if any invoice is not paid in full by the due date interest shall be payable on any overdue amount from the date on which payment was due to that on which it is made (whether before or after judgment) on a daily basis at the rate of 4 per cent over the base rate from time to time quoted by our bankers from time to time, or, if greater, as determined in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. You shall also pay all legal and other costs incurred by us in recovering any amounts owing from you.  Such costs shall be due for payment immediately on invoice.
12. claims
    • We shall have no liability:
      • for any discrepancy which results from any information, details or materials supplied by you or on your behalf; or
      • in respect of any failure of the Services to conform to the Specification unless you give us notice (including your reasons why you do not think the Services conform) in writing within 21 days of performance of the same.
    • As our sole warranty we will within a reasonable period of receiving your notice sent in accordance with condition 12.1.2 make such reasonable alterations to the Services as may be required to bring them into conformance with the Specification.
    • Services in respect of which no claim is made in accordance with these conditions shall be deemed to have been accepted by you.
13. Liability
    • Except as provided in condition 4.4 (and subject to condition 12) or as otherwise expressly agreed in writing by us neither we nor any third party shall have any obligation duty or liability in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever in connection with any Contract except only to the extent that we may not exclude liability including for:
      • death or personal injury caused by our negligence or the negligence of our employees, agents or consultants whilst acting in the course of their employment or engagement; or
      • our fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by our employees, agents or consultants whilst acting in the course of their employment or engagement.
    • We shall in no circumstances have any liability for:
      • any economic loss (whether direct or indirect), including wasted time or expenditure, loss of profits, production, business revenue or goodwill;
      • any indirect, special or consequential loss, damage, costs, expenses or other claims for compensation whatsoever by you arising out of, under or in connection with any Services supplied by us;
      • any claims as a result of any delays, errors or losses arising from any third party you require us to work with as part of a wider project which includes the provision of the Services; or
      • any claims against you by any person. You shall be solely responsible for any such losses or claims and you shall indemnify us and hold us harmless against any such losses or claims.
    • Subject to condition 13.1:
      • we shall be discharged of all liability to which these conditions apply unless (without extending statutory limitation) proceedings are begun and served within 12 months after you became aware (or should reasonably have become aware) of the facts giving rise to such liability;
      • our liability in connection with the Services and the Contract shall in no circumstances exceed the amount you have paid to us in respect of our Fee for the Services.
    • Any claim by you or acceptance of liability by us in respect of any particular Services shall not entitle you to reject or refuse to pay for any other Services comprised in the Contract or any services comprised in any other agreement with us.
14. Confidentiality and intellectual property
    • A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (“disclosing party”), its employees, agents, consultants or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents, consultants and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents, consultants and subcontractors comply with the obligations set out in this condition as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. We may disclose such of your confidential information as is required to be disclosed to the relevant accreditation body or representative body.
    • All intellectual property or other rights arising out of or in connection with the Services shall be owned by us.
    • The CENSolutions CMS Mark shall be and remain our exclusive property. The CENSolutions CMS Mark shall be used by you only in the manner and to the extent specifically licensed pursuant to the Licence.  All intellectual property rights and any goodwill arising out of or in connection with your use of the CENSolutions CMS Mark shall inure to our exclusive benefit.
    • The grant of the Licence shall be conditional on you:
      • using the CENSolutions CMS Mark correctly depicted (including in size, shape and colour) and only in the style as registered or, if not registered, as used or directed by us;
      • using the CENSolutions CMS Mark and/ or referring to your Certification in advertising and publicity material and on your website accurately, fairly and lawfully.
    • You shall not take any action which might invalidate the CENSolutions CMS Mark, impair any of our rights in and to the CENSolutions CMS Mark or create any rights adverse to our rights.
    • All intellectual property rights (including copyright) in the Manual shall be and remain our exclusive property.
    • You shall own, subject to condition 14.9, the physical and electronic copy of the Manual. You shall only make such copies of the Manual as may be necessary for you own internal business purposes.  You may only use these Manual(s) for your internal business purposes.
    • You shall not use the CENSolutions CMS Mark or the Manual in respect of products manufactured by a third party for or on your behalf.
    • You shall not assign, charge, licence, transfer or otherwise deal in any way with:
      • the Licence;
      • the CENSolutions CMS Mark or
      • the Manual (both the physical or electronic copies and any intellectual property rights).
    • You will not remove any copyright and/or trade mark notices which we incorporate into the Manual (or any part thereof).
    • You agree that we may, with your permission, refer to you or the work done on your behalf in our marketing material and/or on our website.
15. suspension and termination
    • Either party may terminate the Contract at any time by giving the other party 30 days’ written notice.
    • If you fail to make any payment when and as due or otherwise default in any of your obligations under the Contract or any other agreement with us, are unable to pay your debts in the ordinary course of your business, have a receiver, manager, administrator, administrative receiver or trustee in bankruptcy (as the case may be) appointed for all or any part of your undertaking, assets or income, have a resolution passed or a petition presented to any court for your winding up (compulsorily or voluntarily), enter into any composition or arrangement with your creditors (whether formal or informal), have any distraint or execution levied on any of your assets, suffer any action similar to any of the foregoing in any jurisdiction or cease to trade or we bona fide believe that any of the foregoing matters may occur, then, in any such event, we shall, without prejudice to any other remedy, be entitled, at our discretion, without liability to you, by giving you written notice at any time or times, to suspend our performance of or (whether or not such performance has previously been suspended) terminate the Contract.
    • Without prejudice to our other rights if you fail to comply with conditions 7.6 or 14 the Contract and the Licence shall terminate automatically without notice.
    • Our rights shall not be prejudiced or restricted by any indulgence or forbearance extended to you and no waiver by us in respect of any breach shall operate as a waiver in respect of the same or any subsequent or other breach.
    • On termination of the Contract for any reason you must:
      • 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 may submit an invoice, which shall be payable immediately on receipt ;
      • cease to use and promptly return all of our confidential information;
      • cease to use and remove all references to the CENSolutions CMS Mark including on any website in your possession or control;
      • at your expense and as we may direct, return to us, or otherwise dispose of or destroy, all signs, promotional and display materials and stationary referring to or bearing the CENSolutions CMS Mark; and
      • cease to refer to and remove all reference to any association (whether past or present) between your business and the CENSolutions CMS Mark.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect:
16. general
    • Neither party shall be liable for any delay or other failure to perform any of its obligations under the Contract resulting from any cause whatsoever beyond its reasonable control and the party concerned shall be entitled to a reasonable extension of time for performance.
    • Any notice to be given to either party shall be in writing and if sent by fax or email or forwarded by prepaid first class post to the receiving party at its business address as last notified in writing to the other party shall be deemed to have been given on the date of the fax or email transmission (if sent during normal office hours and provided a copy is sent the same day by post) or 2 working days following the date of posting.
    • Save as expressly provided to the contrary in these conditions, the acceptance of any request by you to cancel or suspend the performance of the Services shall be in our discretion and shall take effect only when we give written confirmation of such acceptance.
    • If any provision or part-provision of the Contract is or becomes invalid or unenforceable, such invalidity or unenforceability shall not affect the validity and enforceability of the rest of the Contract.
    • We may at our discretion sub-contract all or any of our obligations under any Contract but you shall not assign the Contract without our prior written consent.
    • No right is granted to any third party to enforce any rights relating to the Contract.
    • We reserve the right to amend these conditions from time to time provided we give you at least 30 days notice in writing of changes.

17. law, jurisdiction
    • The Contract shall be governed by English law and the parties consent to the exclusive jurisdiction of the English courts in all matters relating to the Contract except to the extent we invoke the jurisdiction of the courts of any other country or state.