Focus Retail Services Limited – Terms & Conditions of Sale

These terms and conditions (‘Terms’) apply to the order (‘Order’) made by you (‘Customer’) with Focus Retail Services Limited (‘Supplier’). The order shall be subject only to these terms to the exclusion of any other terms and conditions which a Customer might seek to impose regardless of (a) when or in what form such terms and conditions might have been submitted and (b) whether such terms and conditions purport to exclude or supersede these terms. The customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Focus Retail Services Limited which is not set out in the terms. By accepting the order or making any counter offer which is accepted by Focus Retail Services Limited the customer accepts these terms without modification (unless any such modification has been agreed in writing and signed by a director of Focus Retail Services Limited.

Recital

The supplier is in the business of providing services for the installation and survey of marketing materials in retail outlets throughout the UK and Europe.
The customer appoints the supplier to provide the services described on the order to the customer and the supplier is willing to provide the same and to accept such appointment upon these terms

NW IT IS AGREED as follows:

DEFINITIONS AND INTERPRETATIONS
- In these terms, unless the context otherwise requires:
  - Briefing Costs – means the costs of the knowledge transfer and training session for the supplier’s employees and contractors in respect of the services, as set out in the order.
  - Cancellation Costs – means those charges set out in Clauses 12.1.4 and 12.1.5 to be paid by the customer in the event of a cancellation or termination of the order
  - Charges – means the charges to be paid by the customer and the provision of the services as set out in the order and as may be amended from time to time.
  - Completed – means signed off as being accepted in accordance with Clause 4.
  - Confidential Information – means secret or confidential commercial, financial, marketing, technical or other information, know-how, trade secrets and other information in any form or medium whether disclosed orally or in writing before or after the acceptance of an order, together with any reproductions of such information in any form or medium or any part(s) of this information ( and ‘confidential’ means that the information, either in its entirety or in the precise configuration or assembly of its components, is not publicly available)
  - Contact Details – means the contact details for the parties including postal address, fax number and email address, and the names of the parties’ representatives specified in the order
  - Equipment Costs – means the costs of hiring, purchasing, leasing or otherwise acquiring any equipment required for the specific and custom-requirements of the customer, as set out in the order
  - Materials – means all the data, information, text, drawing, diagrams, images or sounds which are embodied in any electronic or tangible medium
  - Intellectual Property Rights – means patents, trademarks, design rights, applications for any of the foregoing, copyright, topography rights, database rights, rights in know-how, trade or business names and other similar rights or obligations, in each case whether registrable or not, in any country
  - Location – means the retail units or other business premises specified in the order, where the customer wishes to have the customer materials as part of the services
  - Services – means the services provided to the customer by the supplier as specified in the order.

1. Time Frame – means the timeframe specified in the order for the supply of services by the supplier to the customer.

1.2. In these terms unless otherwise specified

1.2.1. reference to a subsidiary or holding company is to be construed in accordance with the Companies Act 1985 section 736

1.2.2. reference to a party is reference to a party to these terms and includes its permitted assignees and the respective successors in title

1.2.3. reference to a person includes any person, individual, company, firm, corporation, government, state or agency of a state, or any undertaking whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists

1.2.4. Words imparting the singular shall include the plural and vice versa. Words imparting a gender include every gender and references to persons include an individual, company, corporation, firm or partnership

1.2.5. all sums payable under these terms are exclusive of VAT or any applicable tax or duty payable upon such sums which shall be added if appropriate at the rate prevailing of the relevant tax point

1.2.6. the words and phrases ‘other’, ‘including’ and ‘in particular’ shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible

1.2.7. references to any statute or statutory provision shall include (i) any subordinate legislation made under it (ii) any provision which it has modified or re-enacted (whether with or without modification) and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification)

1.2.8. all references in these terms to clauses and order are to be clauses contained in these terms and order documents attached hereto unless otherwise stated

Terms

Duties
- subject to these terms, the supplier shall provide the services to the customer

Charges and Payment

In consideration of the provision of the services by the supplier to the customer, the customer shall pay the charges to the supplier in accordance to the order
The supplier shall be entitled to invoice the customer on a weekly basis in arrears in respect of any services performed during the previous week. All sums payable hereunder are exclusive of VAT or any other applicable tax or duty payable upon sums which shall be added if appropriate at the rate prevailing at the relevant tax point
The supplier will issue VAT invoices in respect of the sums payable by the customer prior to the relevant payment date.
All invoices submitted by the supplier shall be paid by the customer within a period of thirty(30) days following their submission by the supplier
Without prejudice to any other right or remedy of the supplier, if the customer fails to make any payment under these terms on the due date for payment then the supplier may charge the customer, and the customer shall pay the supplier on demand, any interest on the unpaid amount at the rate of four percent (4%) per annum above the then current base rate of Barclays Bank plc from the due date for payment until payment is received in full by the supplier
If any sums are due to the customer from the supplier, then the supplier shall be entitled to exercise the right to set-off such sums against payments due to the supplier from the customer under or in relation to this or any other agreement. The customer shall not be entitled to apply any amount due to the supplier under these terms to or towards payment of any sum owing by the customer to the contractor in relation to any matter whatsoever
If any invoice remains unpaid after a period of thirty (30) days after submission to the customer, the supplier shall be entitled to suspend its obligations under these terms until it receives such payment or security for payment of the charges from the customer as it may require. Any such suspension of services is without prejudice to any rights to remedies available to the supplier

The Services

the supplier will use all reasonable efforts to perform the services in the timeframe, and will ensure its employees and agents are aware of all the notified policies in place at the locations, and will procure that all employees and agents are bound by terms of confidentiality in respect of the customer material
For each location specified in the order, the supplier shall obtain written or electronic sign-off or confirmation from the customer’s designated employee or agent, and such sign off shall be evidence that the services were completed in respect of that particular location. In the event that no such sign-off is obtained, then the services shall be deemed to be accepted and completed unless the customer notifies the supplier otherwise within 24 hours of the provision of service for each individual location

Customer Material

for the avoidance of doubt, the supplier will have no liability for the contents of customer material transported, installed, exhibited, displayed or otherwise published by virtue of the services
The supplier shall store and maintain the customer material in the supplier’s warehouses as required, for the purposes of providing the services. Whilst the supplier shall exercise reasonable care and skill in ensuring the customer material is securely and safely stored in its warehouses, any such storage will be at the customer’s sole risk
the supplier may transport the customer material as required for the purposes of the services and the customer shall bear the risk for the customer material whilst in transit
these terms do not transfer or grant to the supplier any right, title, interest in any intellectual property rights in the customer material, except for the rights expressly granted in these terms

Warranties

the supplier warrants to the customer that all services provided to the customer by the supplier shall be provided with reasonable care and skill
the customer warrants to the supplier that:
- the suppliers use of the customer material in accordance with these terms will not infringe the rights or interests of any third party in the UK, Republic of Ireland or Europe
- the customer material does not contain any illegal or unlawful content
- it has the rights, power and authority to permit the supplier to use the customer material for the purposes of the term

Confidentiality

during the period of application of these terms and (for a period of (6 months)) after termination expiration or completion of the order the following obligations shall apply to the party disclosing confidential information (‘the disclosing party’) to the other party (‘the receiving party’)
subject to Clause 8.3, the receiving party:
- may not use any confidential information for the purposes other than the performance of its obligations under these terms or
- many not disclose any confidential information to any person except with the prior written consent of the disclosing party and
- shall make all reasonable endeavours to prevent the use or disclosure of the confidential information
the obligations referred to in all provisions of this clause shall not apply to any confidential information which
- is in the possession of and is at free disposal of the receiving party or is published or is otherwise in the public domain prior to its receipt by the receiving party
- is or becomes publicly available on a non-confidential basis through no fault of the receiving party
- is required to be disclosed by any applicable law or regulation or by court order
- is received in good faith by the receiving party from a third party who, on reasonable enquiry by the receiving party claims to have no obligations of confidence to the other party to these terms in respect of the information and who imposes no obligations of confidence upon the receiving party
without prejudice to any rights or remedies the disclosing party may have, the receiving party acknowledges and agrees that in the event of breach of this clause the disclosing party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which he may be entitled
the obligations of the parties under all provisions of this clause shall survive the date of the expiry of these terms for whatever reason

Indemnities

the customer agrees to indemnify and keep the supplier so indemnified from and against claims, demands, actions, proceedings, damages and losses which are made or brought against or incurred by the supplier, arising as a result of the customer’s breach of these terms

Liability

This clause 10 sets out the entire liability of the parties in respect of:
- any breach of these terms
- any tortuous act or omission including negligence arising under or in connection with the services
- loss of actual or anticipated profits (including without limitation loss of profits on contracts)
- loss of the use of money
- loss of business
- loss of opportunity
- loss of goodwill
- loss of reputation
- any direct, special or consequential loss or damage whatsoever
- any loss arising as a result of any third party bringing any claim in respect of any of the above types of loss, except for any third party claim alleging infringement of intellectual property rights which is subject to Clause 9.1Subject to clauses 10.2 and 10.3 above the total aggregate liability of the supplier arising out of, or in connection with these terms whether for negligence or breach of contract or any case whatsoever shall in no event exceed the total amount of charges quoted in the order
- any failure to provide the services in accordance with these terms as a result of any act or omission by the customer or its employees; or
- any failure to provide the services in accordance with these terms as a result of the suppliers compliance with any instruction or direction given by the customer of the supplier has informed the customer before it complies therefore that in its opinion, that instruction or direction will inhibit performance of the services; or
- the absence of any consent required to be obtained by the customer; or
- the actions of any third person engaged or employed by the customer, its affiliates, franchisees, or agents other than the supplier and its subcontractors
Notwithstanding any other provision in these terms, neither party’s liability for death or personal injury resulting from its own negligence or that of its employees, agents or subcontractors, shall not be limited
The supplier shall not be liable for any of the following losses or damages (whether or not such losses or damages were foreseen, direct, foreseeable, known or otherwise):
- loss of revenue
for the avoidance of doubt the provisions of clauses 10.3.1 to 10.3.9 above shall be construed as a separate limitation of liability
the supplier shall not be held in breach of these terms and shall not be liable to the customer for any loss or damage suffered or incurred by the customer or any third person as a result of:
- any failure to provide the services in accordance with the terms unless the customer notified the supplier in writing of such a claim (with detailed particulars of the circumstances giving rise thereto) within 1 month of such failure coming to the customers notice; or
the customer acknowledges that the supplier has calculated the charged in the order on the basis the supplier will exclude or limit its liability as set out in these terms and the customer agrees and warrants that:
- the customer shall insure against or bear itself any loss for which the supplier has excluded or limited its liability in these terms; and
- the supplier shall have no further liability to the customer

Termination

The customer may terminate the order for convenience at any time, provided that such cancellation is confirmed in writing. Any termination for convenience under this clause 11.1shall be treated as a cancellation, and the cancellation charges set out in Clause 12.1.4 will become due
either party may terminate the order with immediate effect by written notice to the other party on or at any time after the occurrence of any of the following events:
CONSEQUENCES OF TERMINATION AND/OR CANCELLATION
CHANGES TO THE SERVICES
REMOVAL OF STAFF
NON-SOLICITATION OF STAFF
FORCE MAJEURE
DISPUTE RESOLUTION
WAIVER
INVALIDITY

2.1. these terms shall come into force on the acceptance of an order of services and shall continue until the services are completed, unless terminated earlier pursuant to clause 11.1 or clause 11.2

3.2 the customer shall:

3.2.1 deliver to the supplier the customer material, in such protective packaging that the supplier may reasonably require to enable the supplier to fulfil its obligations under these terms and order

3.2.2 obtain all necessary consents and licences required for the supplier to perform the services in accordance to these terms and order

3.2.3 provide details of any health and safety policies in force at the locations which may affect the services

3.2.4 Provide details of any hazards at the locations of which it is aware that may affect the services.

11.2.1 the other party being in breach of an obligation under these terms and, if the breach is capable or remedy the breach within 30 days after receipt of a written notice of the breach and requiring its remedy;

11.2.2 the other party passing a resolution for winding up, a court of competent jurisdiction making an order for the other party’s winding up or the presentation of a petition of the other party’s winding up which is not dismissed within seven days (other than, in each case, for the purpose of solvent amalgamation or reconstruction where the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the other party’s obligations under these terms);

11.2.3 the making of an administration order in relation to the other party or the appointment of a receiver over or an encumbrance taking possession of or selling an asset of the other party; or

11.2.4 the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally

11.3 termination of the order for whatever reason shall not effect:

11.3.1 the accrued rights and liabilities of the parties arising in any way out of these terms as at the date of termination and in particular but without limitation the right to recover damages against the other; or

11.3.2 provisions expressed to survive these terms, which shall remain in full force and effect

12.1 Upon termination or cancellation of these terms for any reason whatsoever:

12.1.1 (subject to Clause 11 above) the relationship of the parties shall cease and any rights granted under or pursuant to these terms shall cease to have effect save as (and to the extent) expressly provided for in this clause 12.1

12.1.2 The provisions of any terms of these terms provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect;

12.1.3 The customer shall arrange to promptly collect any customer material not collected within14 days of the date of termination or cancellation of the order, and the customer shall be entitled to claim any compensation for such destroyed material

12.1.4 Irrespective of which party terminated the order, or if the order is cancelled, the supplier shall be entitled to recover its cancellation charges from the customer, which shall be calculated and invoiced within 14 days of the termination or cancellation date in the following manner:(a) any briefing costs; and(b) any equipment costs; and(c) labour costs incurred and labour cancellation costs amounting to 3 days pro-rata of the labour costs that would otherwise have been due if the order had not been terminated or cancelled; and(d) any other charges that have been invoiced but not yet paid, any charges for services performed prior to the termination or cancellation date which have not yet been invoiced

12.1.5 in addition to any monies due to the supplier under clause 12.1.4 any cancellation of these terms will incur cancellation charge of 20% of the total charges set out in the order, to cover the costs incurred by the supplier for organising the services prior to cancellation

13.1 at any time up to and including 2 (working) days prior to the commencement of the services
13.1.1 the supplier can request changes to the services if after its reasonable efforts to procure any equipment, goods, services or materials required for the services those equipment, goods, services or materials remain unavailable

13.1.2 the customer can request changes to the services (including a postponement) for any reason, subject to the customer paying any applicable charges set out in clause 13.3

13.2 any time after the commencement of the services, or within 2 (working ) days of such commencement;

13.2.1 the customer can request changes to the services (including a postponement) upon giving the supplier written notice and the customer agreeing to:(a) pay 20% of the total charges set out in the order to cover the suppliers costs of preparation for the cancelled services, and supplier’s further administrative costs in arranging the amended services(b) charges for all work that has been completed by the day that the change request is received by the supplier, and(c) the charges set out in clause 13.3

13.3 in the event of a change to the services under clause 13.1 or 13.2, the customer shall pay the supplier any reasonable and unavoidable direct costs which the supplier has incurred or is unconditionally committed to in connection with the supply of services which are the subject of the cancellation, including any briefing costs and labour costs that may have been incurred regardless of whether the briefing session has taken place

13.4 nothing in this clause 13 shall relieve the supplier of any obligation to use its reasonable endeavours to mitigate its losses due to a cancellation, including any reasonable efforts to reuse items and equipment acquired exclusively for the purposes of the services

13.5 any changes to the services (as listed in the order) under this clause, and corresponding changes in the charges (as listed in the order) must be agreed in writing between the parties, using the contact details listed in the order, which such agreement not to be unreasonably delayed or withheld. The supplier is entitled to refuse any request for change, if the request is under the provisions of clause 13.2 and in its sole discretion deems the request to be unreasonable. Such refusal shall not be deemed a breach, material or otherwise, of these terms

13.6 Any requested change that varies the time in which the services are to be performed by the supplier may only vary the time by a maximum of 28 days. Any request to change the service delivery time by more than 28 days shall be treated as a notice of termination under clause 12, and the supplier shall be entitled to invoice the customer for any applicable charges.

14.1 During the provision of services, the customer shall be entitled to reasonably request the removal of particular members of the supplier’s staff from the provision of the services. Such requests must be reasonable and in writing and must give no less that (3) clear days’ notice, except in cases of gross negligence, fraud or demonstrable serious criminal activity,

14.2 If any supplier staff are removed at the customer’s request, then the supplier shall use its reasonable endeavours (at customer’s cost and expense) to promptly secure staff as to provide the services in an uninterrupted fashion. However, the supplier shall not be liable for any delays or failure to perform the services arising solely from the removal under the clause 13.1 of any supplier staff from the provision of service

14.3 if the supplier removes staff at its own discretion, the supplier shall use its reasonable endeavours to not disrupt the services and provide, if necessary, a replacement member of staff who is no less qualified than the removed staff member

15.1 the parties agree that during the duration of these terms and for an additional period of one year after termination, neither party shall directly or indirectly canvas with a view to offering or providing employment to, offer to contract with or entice to leave any employee of or contractor to the other party engage in the performance of the services without prior written consent of the other party

16.1 ‘an event of force majeure’ means, in relation to either party, an event or circumstance beyond the reasonable control of that party including (without limitation) any act of God, inclement weather, failure or shortage of power supplies, flood, drought, lightning or fire, strike, epidemic, lock-out or trade dispute or labour disturbance, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, war, military operations, act of terrorism or riot, delay or failure in manufacture, production or supply by third parties of equipment or services.

16.2 The party suffering the event of force majeure shall not be deemed to be in breach of these terms or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under these terms (and for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an event of force majeure

16.3 If the event of force majeure in question prevails for a continuous period in excess of 14 days after the date on which it began, the other party may give notice to the party suffering the event of force majeure terminating these terms. The notice to terminate must specify the termination date, which must be not less than 14 clear days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, these terms will terminate on the termination date set out in the notice.

17.1 All disputes at any time arising between the parties that cannot be resolved by the parties representatives listed in the order may in the first place be referred to the sales director of the customer and a person nominated by the supplier. If these persons are unable to resolve the dispute, they may refer it to the managing directors of the customer and the supplier. If the managing directors of the customer and the supplier are unable to resolve the dispute, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, a party must serve notice in writing (‘ADR notice’) to the other party requesting mediation. A copy of the ADR notice should be sent to CEDR solve. The mediation will start not later than 30 days after the date of the ADR notice. Unless otherwise agreed by the parties, the place of mediation shall be nominated by the mediator.

17.2 the commencement of mediation shall not prevent the parties commencing or continuing court proceedings. Any dispute may be referred to an expert in accordance with the remaining provisions of this clause.

17.3 For the avoidance of doubt the provisions of this clause provides for a form of advanced dispute resolution and is not a reference to arbitration. Recourse to this dispute resolution procedure shall be binding on the parties as to submission to the mediation but not as to its outcome. Accordingly all negotiations connected with the dispute shall be conducted in strict confidence and without prejudice to the rights of the parties in any future legal proceedings. Except for any party’s right to seek interlocutory relief in the courts, no party may commence other legal proceedings under the jurisdiction of the courts or any other form of arbitration until 15 days after the parties have failed to reach a binding settlement by mediation

18.1 a waiver of any term, provision or condition of these terms shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which it is given

18.2 no failure or delay on the part of any party in exercising any right, power or privilege under these terms shall operate as a waiver of it, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise of it or the exercise of any other right, power or privilege

18.3 no breach of any provision of these terms shall be waived or discharged except with the express written consent of the parties

19.1 if any provision of these terms is or becomes invalid, illegal or enforceable except under the law of any jurisdiction, whether pursuant to any judgement or otherwise:

19.1.1 the validity, legality and enforceability under the law of that jurisdiction of any other provision; and

19.1.2 the validity, legality and enforceability under the law of any other jurisdiction of any other or any other provision

19.1.3 shall not be affected or impaired in any way

19.2 if any provision of these terms is held to be void and declared illegal, invalid or unenforceable for any reason whatsoever, that provision shall be divisible from these terms and shall be deemed to be deleted from it and the validity of the remaining provisions shall be not affected

20 REMEDIES

20.1 The rights and remedies provided for by these terms are cumulative with and not exclusive of any rights or remedies provided by law.

20.2 Without prejudice to any other rights or remedies of the parties, each party acknowledges forth benefit of the other that damages might not be an adequate remedy for any breach of the provisions of these terms and that, accordingly, either party shall be entitled without proof of special damage to the remedies of injunction and specific performance and other equitable remedies for any threatened or actual breach of the provisions of these terms by the other

21 NOTICES

21.1 any notices sent under these terms must be in writing and may be served by personal delivery or by sending the notice by registered post or facsimile or electronic data transmission at the address given above or at such address as the relevant party may give for the purpose of service of notices under these terms and every such notice shall be deemed to have been served upon delivery if served by hand or at the expiration of 1 business day after despatch of the same if delivered by registered post or at ten hours am local time of the recipient on the next business day following despatch if sent by facsimile or electronics data transmission

21.2 to prove service of any notice it shall be sufficient to show in the case of a notice delivered by hand that the same was duly addressed and delivered by hand and in the case of a notice served by post that the same was duly addressed prepaid and posted in the manner set out above. In the case of a notice given by facsimile or electronics data transmission, it shall be sufficient to show that it was despatched in a legible and complete form to the correct telephone number or electronic data number or address without any error message provided that a confirmation copy of the transmission is sent to the recipient by registered post in the manner set out above. Failure to send a confirmation copy will invalidate the service of any facsimile or electronic data transmission

22 ENTIRE AGREEMENT

22.1 these terms and the order constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of the order

22.2 each of the parties acknowledges and agrees that in entering into these terms and the documents referred to in it, it does not rely on and shall have no remedy in respect of, any statement, representation, warranty, or understanding (whether negligently or innocently made) of any person (whether party to these terms or not) other than as expressly set out in these terms as a warranty. The only remedy available to it for a breach of the warranties shall be for breach of contract under the terms of these terms. Nothing in this clause shall operate to limit or exclude any liability for fraud

22.3 unless otherwise expressly provided elsewhere in these terms, these terms may be varied only by a document signed by both of the partied

23 RELATIONSHIP OF THE PARTIES

23.1 nothing in these terms and no action taken by the partied pursuant to these terms shall constitute, or be deemed to constitute, a partnership, association, joint venture, the agents each other or any other co-operative entity

24 GOVERNING LAW AND JURISDICTION

24.1 These terms, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to them of their formation, shall be governed by and construed in accordance with the laws of England

24.2 The parties irrevocably submit to the exclusive jurisdiction of the courts of England to hear and determine any suit, action or proceedings or settle any disputes arising out of or in connection with these terms and to enforce any judgement against their respective assetstransmission

25 EXCLUSION OF THIRD PARTY RIGHTS

25.1 The contracts (rights of third parties) Act 1999 shall not apply to these terms and no person other than the parties to these terms shall have any rights under them, nor shall they be enforceable under that Act by any person other than the parties to them.

Focus Retail Services Limited – Terms & Conditions of Sale

Focus Retail Ltd

Address