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Marshalls Accredited Terms and Conditions
1 DEFINITIONS AND INTERPRETATION
1.1 Words and phrases beginning with capital letters in these Terms and Conditions are defined terms and shall have the meanings set out in the Key Terms, condition 27 of these Terms and Conditions or as set out in the Application Form.
1.2 In the event of any conflict of ambiguity between the documents making up the Agreement, the order of precedence shall be these Terms, the Key Terms and Conditions, the Application Form and the Member Handbook.
2 MEMBERSHIP
2.1 Marshalls offers memberships to eligible applicants. Marshalls does not accept memberships that are conditional upon any special request being met by Marshalls.
2.2 Members are unable to freeze or pause their membership and memberships are non-transferrable.
2.3 MEMBERSHIP FEES
2.3.1 The Membership Fee shall be the Membership Fee in place at the date the payment for the Membership Fee is taken. Membership Fees are non-refundable.
2.3.2 If the Member provides its payment details to Marshalls, for example, in relation to a direct debit payment arrangement, it accepts and consents to being charged with Membership Fees for each payment in accordance with the Agreement.
3 INDEMNITY AND INSURANCE
3.1 The Member agrees to Indemnify Marshalls in relation to any act or omission (including any negligent act or omission) of the Member and any negligence, misconduct or non-compliance of the Member.
3.2 The Member shall take out and maintain at all times during the term or the Agreement the following types and minimum levels of insurance:
3.2.1 Public Liability Insurance in the sum of £2,000,000 per incident; and
3.2.2 Employers Liability Insurance in the statutory minimum sum, subject always to any other minimum levels or insurance as notified by Marshalls to the Member from time to time during the currency of the Agreement. The Member shall provide evidence to Marshalls that the required insurances are being maintained upon reasonable request at any time to do so.
4 STATUTORY OBLIGATIONS
The Member shall comply with all applicable statutes, regulations and orders in performing its obligations under the Agreement.
5.1 Subject to this condition 5, Marshalls provides a non-exclusive, non-transferrable, non-sublicensable, revokable licence for the Member to use the Trade Marks on its website and in its promotional content, solely for the purposes of exercising its rights and performing its obligations under the Agreement, during the term of the Agreement. No further transfer or licence of Marshalls’ Intellectual Property Rights shall be made to the Member under the Agreement.
5.2 The Member shall ensure that each reference to and use of any of the Trade Marks by the Member is in a manner from time to time approved by Marshalls and accompanied by an acknowledgement in a form approved by Marshalls (such approval not to be unreasonably withheld or delayed), that the same is a Trade Mark of Marshalls.
5.3.1 any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Marshalls; or
5.3.2 in relation to any products manufactured by Marshalls any trade marks or names other than the Trade Marks without obtaining the prior written consent of Marshalls; or
5.3.3 in relation to any of the Trade Marks any products other than Marshalls products; or
5.3.4 any trade marks, symbols, devices or names so resembling the Trade Marks as to be likely to cause confusion or deception.
5.4 The Member shall not apply to register any of the Intellectual Property Rights nor any corporate title, trade marks, trade names or domain names incorporating or so nearly resembling the Trade Marks as to be likely to deceive or cause confusion.
5.5 Except as expressly provided in the Agreement, the Member shall have no rights in respect of any Intellectual Property Rights however used by Marshalls and the Member hereby acknowledges that, it shall not acquire any rights in respect thereof and that all such Intellectual Property Rights are and shall remain vested in or controlled by Marshalls and all use of the Trade Marks shall endure for Marshalls’ benefit.
5.6 Without prejudice to the right or the Member or any third party to challenge the validity of any Intellectual Property Rights of Marshalls, the Member shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of Marshalls and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect.
5.7 The Member shall promptly report to Marshalls particulars of any use by any other person of a trade name, trade mark, domain name or get-up of goods or mode of advertising which might infringe the Trade Marks or amount to unfair competition or passing off at common law and Marshalls shall have the exclusive right to determine whether or not any litigation shall be instituted or other action taken in connection with any such infringements or imitations.
5.8 The Member provides a non-exclusive and perpetual licence for Marshalls to use the Intellectual Property Rights of the Member on its website and in its promotional content, for the purposes of exercising its rights and performing its obligations under the Agreement, providing examples of its Members to third parties, in case studies and promoting the Member. Marshalls shall be under no obligation to remove any reference to the Member from Marshalls’ printed or published marketing materials, during, on or after termination of the Agreement.
6.1 In this condition 6, the term “process” shall have the meaning given in the Data Protection Legislation (and “processed” shall be construed accordingly); “processor” has the meaning given to “data processor” or “processor” at the relevant time in the Data Protection Legislation; and “controller” has the meaning given to “data controller” and “controller” at the relevant time in the Data Protection Legislation.
6.2 Each party shall comply with its obligations under the Data Protection Legislation in relation to any Customer Information processed in connection with the Agreement.
6.3 The parties acknowledge and agree that Marshalls and the Member each act as a controller (and not a processor) in relation to, and for the duration of, the processing of any Customer Information, by it or any third party acting on its behalf, in connection with the Agreement.
6.4 The data processed by Marshalls under this Agreement may include the name, address, email, bank details and telephone number of the Member and/or its employees or workers. See the Privacy Policy for further details.
6.5 For further information regarding data protection or the policies and procedures that Marshalls has in place to ensure compliance with its obligations under the Data Protection Legislation, please contact Marshalls’ Data Protection Officer at dpo@marshalls.co.uk.
6.6 If the Member takes photographs in the course of its obligations under this Agreement and/or the Installation Services, it shall obtain any relevant consents prior to sharing such photographs with Marshalls.
7 REPORTING
7.1 Marshalls requires the Member to provide regular reporting to Marshalls in relation to the Installation Services, products, installation issues, client feedback and market insights to improve the building system. On reasonable request from Marshalls, the Member shall provide such information in writing.
8 CUSTOMER COMPLAINTS
Should a Customer complain to either Marshalls or the Member regarding the Installation Services each party shall comply with the customer complaints procedure set out in the Members Handbook.
9 TERMINATION
9.1 Without prejudice to Marshalls’ rights under condition 9.2, either party may, by written notice served on the other, terminate the Agreement if the other:
9.1.1 is in material or persistent breach of any of the terms of the Agreement and, where the breach is capable of remedy, the other party fails to remedy such breach within 30 days or service of a written notice from the party not in breach, specifying the breach and requiring it to be remedied; or
9.1.2 being a company, summons a meeting of its creditors, makes a proposal for a voluntary arrangement, becomes subject to any voluntary arrangement, is unable to pay its debts within the meaning of section 123 Insolvency Act 1986, has a receiver, manager or administrative receiver appointed over any of its assets, undertaking or income, has passed a resolution for its winding up (save for the purpose of a voluntary reconstruction or amalgamation), is subject to a petition presented to any Court for its winding-up (save for the purpose of a voluntary reconstruction or amalgamation), has a provisional liquidator appointed, has an administrator appointed in respect of it or is the subject of an application for administration filed at any court or a notice of appointment of an administrator filed at any court or a notice of intention to appoint an administrator given by any person or is the subject of a notice to strike off the register at Companies House: or
9.1.3 being an individual, partnership or firm has entered into any composition or arrangement with its creditors, has a petition presented by it or by any other person for its bankruptcy, has a bankruptcy order made against it, has applied to the Court for an interim order under section 253 Insolvency Act 1986, has submitted a proposal for a voluntary arrangement to a nominee under Section 256A Insolvency Act 1986, has a petition presented for an Administration Order under Part Ill Insolvent Partnerships Order 1994 (“the Order”), has a petition presented for winding up as an unregistered company under Parts IV or V of the Order, has an interim receiver of its property appointed under section 286 Insolvency Act 1986, is unable to pay its debts within the meaning of sections 26 7 and 268 Insolvency Act 1986, has a receiver or manager appointed over any of its assets, dies or by reason of any illness (including mental disorder or infirmity), accident or injury or any other cause whatsoever becomes unable for a consecutive period of three months or for an aggregate period of three months in any one consecutive period of six months to comply with its obligations under the Agreement; or
9.1.4 has any distraint, execution or other process levied or enforced on any of its property;
9.1.5 ceases, or appears in the reasonable opinion of the party wishing to terminate likely or is threatening to cease to trade within 30 days; or
9.2 Marshalls may terminate the Agreement (and therefore cease the membership of the Member) with immediate effect by notice to the Member in the event of:
9.2.1 the Member ceasing to operate;
9.2.2 the Member failing to meet the Standards, fails any assessment of Marshalls and/or does not act in the spirit of the membership;
9.2.3 notwithstanding condition 9.1.1, the Member fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days;
9.2.4 the Member having 3 or more legitimate complaints made against it;
9.2.5 the Member causing or being likely to cause damage to reputation or goodwill of Marshalls;
9.2.6 any Installation Services not being carried out by the Member to the standard specified in the Agreement or not being carried out in reasonable timescales;
9.2.7 the Member failing to provide evidence of the requisite insurance cover when requested to do so under condition 3.2;
9.2.8 the Member breaching any provisions of condition 5.3 or condition 5.6;
9.2.9 a change in the management or Control of the Member;
9.2.10 the Member failing to carry out any remedial works required under the Hard Landscape Guarantee in a reasonable timescale and/or to the appropriate standard; or
9.2.11 if the Member is an individual, the Member:
9.2.11.1 is subject to a term of Imprisonment, whether or not suspended;
9.2.11.2 commits any gross misconduct affecting the business of the Marshalls or any group company;
9.2.11.3 commits any serious or repeated breach or non-observance of any of the provisions of this agreement or refuses or neglects to comply with any reasonable and lawful directions of the Marshalls;
9.2.11.4 is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed); or
9.2.11.5 is in the reasonable opinion of the Board negligent or incompetent in the performance of the Services.
10 CONSEQUENCES OF TERMINATION
10.1 Termination of the Agreement howsoever arising is without prejudice to the rights, duties and liabilities of either party accrued prior to termination.
10.2 The clauses and conditions in the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
10.3 Notwithstanding any other provisions under the Agreement, on termination of the Agreement the membership shall cease and Member shall:
10.3.1 cease to hold himself out as a Marshalls accredited installer and cease to use the Trade Marks;
10.3.2 remove, cease the use of and/or obliterate in a permanent manner all references to the Trade Marks (and any other Intellectual Property of Marshall) from any item in its possession, custody or control;
10.3.3 not operate or purport to operate under the Agreement;
10.3.4 return all equipment and materials received from Marshalls including, without limitation, Hard Landscape Guarantee documentation, customer aftercare leaflets and any further copies of such documents retained by the Member; and
10.3.5 not offer or provide any Hard Landscape Guarantee to any Customer.
11.2 will keep confidential the terms of the Agreement and any and all Confidential Information that it may acquire in relation to Marshalls,
11.3 undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by condition 11.4; and
11.3.1 will not use the Confidential Information for any purpose other than to perform its obligations under the Agreement and will ensure its officers and employees, comply with the provisions of this condition 11.
11.4 The obligations on the parties set out in condition 11.1 will not apply to any information which:
11.4.1 is publicly available or becomes publicly available through no act or omission of the Member; or
11.4.2 the Member is required to disclose by order of a court of competent jurisdiction.
11.5 The provisions of this condition 11 will survive any termination of the Agreement for a period of 12 months from termination.
12 FORCE MAJEURE
12.1 Neither party to the Agreement will be deemed to be in breach of the Agreement or otherwise liable to the other party in any manner whatsoever for any failure or delay in performing Its obligations under the Agreement due to Force Majeure, provided the affected party shall promptly upon the occurrence of a Force Majeure event inform the other party in writing, stating that the event has delayed or prevented its performance under the Agreement and thereafter that party shall lake all action within its power to comply with the terms of the Agreement as fully and promptly as possible.
13.1 Neither party may assign, charge, transfer or deal in any other manner with the benefit of, or any or all of its rights, under the Agreement without the prior written consent of the other party.
13.2 Notwithstanding the provisions of this condition 13, Marshalls may at any time assign the benefit of or any of its rights under the Agreement to any associated company of Marshalls without consent.
13.3 The Member may not sub-contract any or all of its rights or obligations under the Agreement without the prior written consent of Marshalls.
13.4 Marshalls may sub-contract any or all of its rights or obligations under the Agreement as, in Its absolute discretion, sees fit.
14 RELATIONSHIP OF PARTIES
14.1 No provision of the Agreement creates a partnership, a joint venture or any other form of representation between the parties or makes the party the agent of the party for any purpose. Neither party has any authority or power to bind, to contract in the name of, or to create a liability for the other party in any way or for any purpose.
14.2 Each party warrants and represents that it is entering into the Agreement as principal and not as agent for any person and will act as an independent contractor in carrying out its obligations under the Agreement.
15 THIRD PARTY RIGHTS
The parties to the Agreement do not intend that any of Its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
16.1 To protect the Confidential Information and business and Customer connections to which the Member has access as a result of the membership, the Member covenants with Marshalls that it shall not at any time from the date of the Agreement to the expiry of 6 months after termination (without the prior written consent of Marshalls):
16.1.1 solicit or entice away from Marshalls the business or custom of a Customer with a view to providing goods or services to that Customer in competition with any Restricted Business;
16.1.2 solicit or entice away from Marshalls or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Marshalls in the provision of the membership; or
16.1.3 be involved with the provision of goods or services to any Customer in the course of any business concern which is in competition with any Restricted Business.
16.2 Nothing in this condition 16 shall prevent the Member from being engaged or concerned in any business concern insofar as its duties or work shall relate solely to geographical areas where the business concern is not in competition with any Restricted Business.
17 INVALIDITY/SEVERABILITY
If any clause or part of the Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Agreement and will be ineffective without, as far as is possible, modifying any other clause of the Agreement and this will not affect any other provisions of the Agreement which will remain in full force and effect.
18 WHOLE AGREEMENT/RELIANCE ON REPRESENTATIONS/LIABILITY
18.1 The Agreement is not binding on the parties, and the Member shall not be considered a “member” of Marshalls accredited scheme unless and until Marshalls has accepted the Member as a “member”, and both Marshalls and the Member have signed the Agreement under the Key Terms.
18.2 The Agreement and other documents which are incorporated into and form part of the Agreement contain all the terms which the parties have agreed in relation to the subject matter of the Agreement and supersede any written or oral agreements, representations or understanding between the parties in relation to the same or similar subject mailer.
18.3 Each party acknowledges that it has not been induced to enter into the Agreement by a statement or promise which it does not contain or is not contained in a document referenced within it. All warranties, conditions and other terms (whether express or implied) that are not set out in the Agreement are (to the fullest extent permitted by law) excluded from the Agreement.
18.4 Nothing in the Agreement shall exclude the liability of either party, in respect of any statements made fraudulently; death or personal injury caused by negligence; or that cannot legally be limited.
18.5 Subject to condition 18.4, Marshalls shall not have any liability to the Member for loss of profits, (including loss of anticipated savings), sales, business, agreements or contracts; loss of use or corruption of software, data or information; loss of or damage to goodwill; or indirect or consequential loss.
18.6 Subject to clauses 18.4 and 18.5, Marshalls’ total aggregate liability to the Member shall not exceed £300.
19 VARIATION
19.1 Any variation to the Agreement made by the Member will not be valid unless it is in writing and signed by or on behalf of each party.
19.2 Marshalls may vary these terms and conditions from time to time on giving the Member at least 14 days' notice in writing. If the Member does not accept the variation, the Customer may, within 14 days of being notified of the variation by Marshalls, terminate the Agreement on written notice to Marshalls. The Member’s continued membership and payment of the Membership after the 14 day period will constitute the Customer's acceptance of the variation.
20.1 The Member shall reimburse Marshalls, pursuant to Part 44.5 of the Civil Procedure Rules, against all Costs incurred by Marshalls in connection with Marshalls’ preservation, exercise or enforcement of any of its rights, or the attempted preservation, exercise or enforcement of any of its rights, under or in connection with the Agreement. For the avoidance of doubt, the parties agree that Marshalls’ Costs will be the subject of detailed assessment (time spent/hourly rate) if not agreed, and that Part 45 of the Civil Procedure Rules shall not apply.
21 GENERAL
21.1 The failure to exercise or delay in exercising a right or remedy provided by the Agreement or by law does not constitute a waiver or the right or remedy or a waiver of other rights or remedies. No single or partial exercise of the right or remedy provided by the Agreement or by law prevents a further exercise of the right or remedy or the exercise of another right or remedy.
21.2 Except where the Agreement provides otherwise, the rights and remedies contained in the Agreement are cumulative and not exclusive of rights or remedies provided by law.
21.3 Time shall not be of the essence in relation to any obligation of Marshalls under the Agreement.
22 COMPLIANCE
22.1 The Member shall comply with the Bribery Act 2010, Modern Slavery Act 2015 and the Criminal Finances Act 2017 and not do, or omit to do, any act that will cause Marshalls to be in breach of the Bribery Act 2010, Modern Slavery Act 2015 or the Criminal Finances Act 2017.
23 RIGHTS OF SET-OFF
Marshalls will be entitled, but not obliged al any time or times, without notice to the Member to set off any liability of the Member to Marshalls against any liability of Marshalls to the Member (in either case howsoever arising and whether any such liability is present or future, liquidated or unliquidated).
24 DISPUTE RESOLUTION
24.1 In the event of a dispute, the parties may resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof by sending a written notice to the other party of any dispute ("Dispute Notice"). The parties may first attempt in good faith to resolve any dispute set forth in the Dispute Notice by negotiation and consultation between themselves. If such dispute is not resolved on an informal basis within 60 days after one party delivers the Dispute Notice to the other party, whether the negotiation sessions take place or not, either party may, escalate the dispute to mediation.
25 GOVERNING LAW AND JURISDICTION
25.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation is governed by, and shall be construed in accordance with, the law of England and Wales.
25.2 Each party irrevocably agrees that the courts of England and Wales shall have the exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation save that claims for injunctive relief in relation to allegations of breach of confidence and any claims relating to Intellectual Property Rights may be brought in any competent jurisdiction.
26 NOTICES
Any notice or communication given under the Agreement shall be in writing and shall be delivered by hand or sent by first class post, or by pre paid recorded delivery or facsimile transmission or e mail transmission addressed to the relevant party at their registered office address or to such other address as may be notified by that party to the other for such purpose. For the purpose of emails sent to Marshalls, the email address shall be: marshallsaccredited@marshalls.co.uk. Any such notice or communication shall be deemed served, if delivered by hand, at the time of delivery: if delivered by first class post or pre paid recorded delivery, 48 hours after being posted; if delivered by facsimile or e mall, at the time of transmission, provided that a confirming copy is sent by first class post to the other party within 24 hours after transmission.
27 DEFINITIONS AND INTERPRETATION
27.1 In the Agreement the words and phrases defined in the Key Terms shall have the meaning given to them by such definitions. In addition the following expressions will have the following meanings unless inconsistent with the context:
“Agreement” the agreement between the parties is made up of the Key Terms, these Terms and Conditions and the Application Form;
“Business Day” any day other than a Saturday, Sunday or bank or public holiday in England;
“Confidential Information” all information in respect of the business of Marshalls including, without prejudice to the generality to the foregoing, any ideas: business methods, finance; prices, business, financial, marketing, development or manpower plans; customer lists or details; computer systems and software; products or services, including but not limited to know-how or other matters connected with the products or services marketed, provided or obtained by Marshalls and information concerning Marshalls’ relationships with actual or potential clients, customers or suppliers and the need and requirement of Marshalls and of such persons and any other information which, if disclosed, will be liable to cause harm to Marshalls;
“Control” control as defined by section 840 of the Income and Corporation Taxes Act 1988;
“Costs” all outgoings, payments, losses, liabilities, costs, claims, demands, charges, and expenses of any kind incurred in connection with litigation, professional fees, disbursements, and any value added tax to be charged on any of those items;
“Customer” the person for whom the Installation Services are to be provided by the Member;
“Customer Information” information relating to a Customer that comprises personal data as defined by the Data Protection Legislation;
“Data Protection Legislation” means all laws in any relevant jurisdiction that relate to data protection, privacy, the use of information relating to individuals, and/or the information rights of individuals including, without limitation, the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the General Data Protection Regulation ((EU) 2016/679).
"Dispute Notice" has the meaning given to it in condition 24.1.
“Force Majeure” any cause preventing either party from performing any or all of it’s obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including, without limitation, strikes, lockouts or other industrial disputes in each case whether involving the workforce of the party so prevented or any other party, protests, act of God, war or national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery (other than caused by a failure to maintain by the Member), fire, explosion, flood, storm or epidemic;
“Indemnify” to indemnify, keep indemnified and hold harmless Marshalls from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims (including without limitation claims by Customers against Marshalls) demands, proceedings or legal costs (on a full indemnity basis) and judgments which Marshalls incurs or suffers and “indemnity”, “indemnities” and “indemnifies” have a corresponding meaning;
“Intellectual Property Rights” all intellectual and industrial property rights including patents, know-how, registered trade marks, utility models, applications for and rights to apply for any of the foregoing, unregistered trademarks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;
“Key Terms” the terms set out in the Application Form, as attached to the Application Form, or as provided by Marshalls from time to time;
“Marketing Materials” brochures, high resolution imagery, video assets and samples.
“Member” the member as set out in the Key Terms that has entered into an Agreement with Marshalls.
“Member Handbook” the handbook for members setting out further details of the membership, as may be updated from time to time by Marshalls.
“Membership Fee” has the meaning given to it in the Key Terms.
“Privacy Policy” Marshalls’ privacy policy available at www.marshalls.co.uk/privacy-policy.
“Restricted Business” those parts of Marshalls’ business with which the Member was involved to a material extent in the 6 months before termination; and
“Trade Marks” the trade marks, trade names and logos set out in the Members Handbook together with such other marks, names and logos as Marshalls may from time to time specify in writing to be available for use by the Member.
27.2 In the Agreement:
27.3 clause, condition and paragraph headings shall not affect the interpretation of the Agreement;
27.4 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality;
27.5 reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
27.6 reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time;
27.7 reference to writing or written includes fax and emai];
27.8 reference to the Agreement or to any other agreement or document referred to in this Agreement is a reference of the Agreement or such other agreement or document, in each case as varied from time to time; and
27.9 any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.