Terms and Conditions
(Issue 3.2 - November 2012)
The Client's attention is particularly drawn to the provisions of clause 11.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks
in London are open for business.
Charges: the charges payable by the Client for the supply of the Services in accordance
with clause 6.
Client: the person or firm who purchases Services from MarQuest.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance
with clause 14.8.
Contract: the contract between MarQuest and the Client for the supply of Services
in accordance with these Conditions.
Deliverables: the deliverables set out in the Order which will be produced by MarQuest
for the Client.
Intellectual Property Rights: all patents, rights to inventions, utility models,
copyright and related rights, trade marks, service marks, trade, business and domain
names, rights in trade dress or get-up, rights in goodwill or to sue for passing
off, unfair competition rights, rights in designs, rights in computer software, database
right, topography rights, moral rights, rights in confidential information (including
know-how and trade secrets) and any other intellectual property rights, in each case
whether registered or unregistered and including all applications for and renewals
or extensions of such rights, and all similar or equivalent rights or forms of protection
in any part of the world.
MarQuest: MarQuest Limited, registered in England and Wales with company number 02911298,
including any of its trading divisions or subsidiaries.
Order: A request (whether orally or in writing) by the Client for MarQuest to perform
the requested Services:
(i) containing the Specification;
(ii) identifying the Quotation reference; and
(iii) the date(s) when the Client requires MarQuest to perform the Services..
Quotation: A written statement of charges from MarQuest, including where necessary,
an outline of the Services to be performed and details on the methods of working
Restricted Person: Any employee of MarQuest, and for the avoidance of doubt including
Peter Quinn, Alistair Meakin, Ian Thackeray, Peter Mackenzie, Mark Jenkins and Thomas
Services: the services, including the Deliverables, supplied by MarQuest to the Client,
as set out in the Specification.
Specification: the adequate description or specification of the Services provided
in writing by the Client to MarQuest.
Termination: termination of the Contract in accordance with clause 12.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether
or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted
(c) a reference to a statute or statutory provision is a reference to such statute
or statutory provision as amended or re-enacted. A reference to a statute or statutory
provision includes any subordinate legislation made under that statute or statutory
provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar
expression, shall be construed as illustrative and shall not limit the sense of the
words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The Order constitutes an offer by the Client to purchase Services in accordance
with these Conditions.
2.2 The Order shall only be deemed to be accepted when MarQuest issues written acceptance
of the Order at which point and on which date the Contract shall come into existence
2.3 The Contract constitutes the entire agreement between the parties. The Client
acknowledges that it has not relied on any statement, promise or representation made
or given by or on behalf of MarQuest which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by MarQuest,
and any descriptions or illustrations contained in MarQuest's catalogues or brochures,
are issued or published for the sole purpose of giving an approximate idea of the
Services described in them. They shall not form part of the Contract or have any
2.5 These Conditions apply to the Contract to the exclusion of any other terms that
the Client seeks to impose or incorporate, or which are implied by trade, custom,
practice or course of dealing.
2.6 The standard terms and conditions of the Client shall not apply to the Order
or the Contract, notwithstanding that they may be printed on the Order or any other
document issued by the Client.
2.7 Any quotation given by MarQuest shall not constitute an offer, and is only valid
for a period of 30 Business Days from its date of issue.
3. Supply of Services
3.1 MarQuest shall supply the Services to the Client in accordance with the Specification
in all material respects.
3.2 MarQuest shall use all reasonable endeavours to meet any performance dates specified
in the Order, but any such dates shall be estimates only and time shall not be of
the essence for performance of the Services.
3.3 MarQuest shall have the right to make any changes to the Services which are necessary
to comply with any applicable law or safety requirement, or which do not materially
affect the nature or quality of the Services, and MarQuest shall notify the Client
in any such event.
3.4 MarQuest warrants to the Client that the Services will be provided using reasonable
care and skill.
4.1 MarQuest will issue a written report on its implementation of an Order where
appropriate or at the reasonable request of the Client.
4.2 MarQuest shall at all times retain the copyright in and such reports and all
other information which it issues by way of implementation of the Contract and the
Client may not copy such reports or any part of them without the written approval
5. Client's obligations
5.1 The Client shall:
(a) ensure that the terms of the Order and any information it provides in the Specification
are complete and accurate;
(b) co-operate with MarQuest in all matters relating to the Services;
(c) provide MarQuest, its employees, agents, consultants and subcontractors, with
access to the Client's premises, office accommodation and other facilities as reasonably
required by MarQuest;
(d) provide MarQuest with such information and materials as MarQuest may reasonably
require in order to supply the Services, and ensure that such information is accurate
in all material respects. The Client shall bear the cost of sending such documentation,
goods or equipment to MarQuest.;
(e) obtain and maintain all necessary licences, permissions and consents which may
be required before the date on which the Services are to start; and
(f) keep and maintain all materials, equipment, documents and other property of MarQuest
(Supplier Materials) at the Client's premises in safe custody at its own risk, maintain
MarQuest Materials in good condition until returned to MarQuest, and not dispose
of or use MarQuest Materials other than in accordance with MarQuest's written instructions
5.2 If MarQuest's performance of any of its obligations under the Contract is prevented
or delayed by any act or omission by the Client or failure by the Client to perform
any relevant obligation (Client Default):
(a) MarQuest shall without limiting its other rights or remedies have the right to
suspend performance of the Services until the Client remedies the Client Default,
and to rely on the Client Default to relieve it from the performance of any of its
obligations to the extent the Client Default prevents or delays MarQuest's performance
of any of its obligations;
(b) MarQuest shall not be liable for any costs or losses sustained or incurred by
the Client arising directly or indirectly from MarQuest's failure or delay to perform
any of its obligations as set out in this clause 5.2; and
(c) the Client shall reimburse MarQuest on written demand for any costs or losses
sustained or incurred by MarQuest arising directly or indirectly from the Client
6. PRICES and payment
6.1 The Charges for the Services will be set out in the Quotation.
6.2 The Client shall pay MarQuest an advance, if expressly requested to do so as
part of an Order, when such Order is accepted, or such other time as is agreed in
writing by MarQuest and the Client. The advance shall be set against the amounts
charged for carrying out the work when the final invoice is drawn up. MarQuest shall
not pay any interest on the advance.
6.3 All rates, prices, charges and discounts provided to the Client in a Quotation
or published in MarQuest's catalogues lists and other documents are subject to variation
at any time prior to the acceptance of an Order by MarQuest. If no rate or price
is quoted or published at the time of acceptance of the Order or if performance of
the Services is to take place at the request of the Client more than 60 days after
acceptance of the Order the price shall be that as determined at the date of performance
as determined solely by MarQuest.
6.4 MarQuest shall invoice the Client on completion of the Services, on delivery
of the goods, or as otherwise agreed with the Client.
6.5 The Client shall pay each invoice submitted by MarQuest:
(a) within 30 days of the date of the invoice unless otherwise agreed; and
(b) in full and in cleared funds to a bank account nominated in writing by MarQuest,
time for payment shall be of the essence of the Contract.
6.6 All amounts payable by the Client under the Contract are exclusive of amounts
in respect of value added tax chargeable for the time being (VAT), and any other
applicable government taxes or duties. Where any taxable supply for VAT purposes
is made under the Contract by MarQuest to the Client, the Client shall, on receipt
of a valid VAT invoice from MarQuest, pay to MarQuest such additional amounts in
respect of VAT as are chargeable on the supply of the Services at the same time as
payment is due for the supply of the Services.
6.7 Without limiting any other right or remedy of MarQuest, if the Client fails to
make any payment due to MarQuest under the Contract by the due date for payment (Due
Date), MarQuest shall have the right to charge interest on the overdue amount at
the rate of 3 per cent per annum above the then current HSBC Bank PLC's base rate
accruing on a daily basis from the Due Date until the date of actual payment of the
overdue amount, whether before or after judgment, and compounding quarterly.
6.8 The Client shall pay all amounts due under the Contract in pound sterling (or
such other currency as Marquest notifies to the Client) in full without any deduction
or withholding except as required by law and the Client shall not be entitled to
assert any credit, set-off or counterclaim against MarQuest in order to justify withholding
payment of any such amount in whole or in part. MarQuest may, without limiting its
other rights or remedies, set off any amount owing to it by the Client against any
amount payable by MarQuest to the Client.
7. Intellectual property rights
7.1 All Intellectual Property Rights in or arising out of or in connection with the
Services shall be owned by MarQuest.
7.2 The Client acknowledges that, in respect of any third party Intellectual Property
Rights, the Client's use of any such Intellectual Property Rights is conditional
on MarQuest obtaining a written licence from the relevant licensor on such terms
as will entitle MarQuest to license such rights to the Client.
7.3 All Supplier Materials are the exclusive property of MarQuest.
8. Non Solicitation
8.1 In order to protect MarQuest, the Client covenants with MarQuest that it will
not (and will procure that its employees, agents, parents, subsidiaries, associates,
advisers and any person acting on its behalf will not) for the duration of the Contract
and for a period of 3 years after Termination:
(a) solicit, induce or attempt to induce, or endeavour to entice away from MarQuest,
its business or custom with a view to providing goods or services in competition
with MarQuest in relation to such business or custom;
(b) solicit, induce or attempt to induce, offer to employ or engage or otherwise
endeavour to entice away from MarQuest any Restricted Person.
8.2 Each of the restrictions in this clause 8 is intended to be separate and severable.
If any of the restrictions shall be held to be void but would be valid if part of
their wording were deleted, such restriction shall apply with such deletion as may
be necessary to make it valid or effective.
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 or subcontractors, and any other confidential information
concerning the Disclosing Party's business or its products or its services which
the Receiving Party may obtain. The Receiving Party shall restrict disclosure of
such confidential information to such of its employees, agents or subcontractors
as need to know it for the purpose of discharging the Receiving Party's obligations
under the Contract, and shall ensure that such employees, agents or subcontractors
are subject to obligations of confidentiality corresponding to those which bind the
Receiving Party. This clause 9 shall survive termination of the Contract.
Neither MarQuest or the Client shall make any announcement concerning the Contract
or any ancillary matter before the date of the Contract except as required by law,
or any regulatory body or with the prior written approval of the other party, such
approval not to be unreasonably withheld or delayed.
11. Limitation of liability: THE CLIENT'S ATTENTION IS PARTICULARLY DRAWN TO THIS
11.1 Nothing in these Conditions shall limit or exclude MarQuest's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees,
agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services
Act 1982 (title and quiet possession).
11.2 Subject to clause 11.1:
(a) MarQuest shall under no circumstances whatever be liable to the Client, whether
in contract, tort (including negligence), breach of statutory duty, or otherwise,
for any loss of profit, or any indirect or consequential loss arising under or in
connection with the Contract; and
(b) MarQuest's total liability to the Client in respect of all other losses arising
under or in connection with the Contract, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, shall in no circumstances exceed the value
of the Order.
11.3 Except as set out in these Conditions, all warranties, conditions and other
terms implied by statute or common law are, to the fullest extent permitted by law,
excluded from the Contract.
11.4 This clause 11 shall survive termination of the Contract.
12.1 Without limiting its other rights or remedies, each party may terminate the
Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach
is remediable) fails to remedy that breach within 30 days of that party being notified
in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is
unable to pay its debts as they fall due or admits inability to pay its debts or
(being a company) is deemed unable to pay its debts within the meaning of section
123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to
pay its debts or as having no reasonable prospect of so doing, in either case, within
the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has
any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors
with a view to rescheduling any of its debts, or makes a proposal for or enters into
any compromise or arrangement with its creditors other than (where a company) for
the sole purpose of a scheme for a solvent amalgamation of that other party with
one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is
made, for or in connection with the winding up of that other party (being a company)
other than for the sole purpose of a scheme for a solvent amalgamation of that other
party with one or more other companies or the solvent reconstruction of that other
(e) the other party (being an individual) is the subject of a bankruptcy petition
(f) a creditor or encumbrancer of the other party attaches or takes possession of,
or a distress, execution, sequestration or other such process is levied or enforced
on or sued against, the whole or any part of its assets and such attachment or process
is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of
an administrator or if a notice of intention to appoint an administrator is given
or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company)
has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other
party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any
jurisdiction to which it is subject that has an effect equivalent or similar to any
of the events mentioned in clause 12.1(b) to clause 12.1(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry
on all or a substantial part of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity
(whether mental or physical), is incapable of managing his own affairs or becomes
a patient under any mental health legislation.
12.2 Without limiting its other rights or remedies, MarQuest may terminate the Contract
with immediate effect by giving written notice to the Client if the Client fails
to pay any amount due under this Contract on the due date for payment.
12.3 Without limiting its other rights or remedies, each party shall have the right
to terminate the Contract by giving the other party 3 months' written notice.
12.4 Without limiting its other rights or remedies, MarQuest shall have the right
to suspend provision of the Services under the Contract or any other contract between
the Client and MarQuest if the Client becomes subject to any of the events listed
in clause 12.1(b)) to clause 12.1(l), or MarQuest reasonably believes that the Client
is about to become subject to any of them, or if the Client fails to pay any amount
due under this Contract on the due date for payment.
13. Consequences of termination
On termination of the Contract for any reason:
(a) the Client shall immediately pay to MarQuest all of MarQuest's outstanding unpaid
invoices and interest and, in respect of Services supplied but for which no invoice
has been submitted, MarQuest shall submit an invoice, which shall be payable by the
Client immediately on receipt;
(b) the Client shall return all of MarQuest Materials and any Deliverables which
have not been fully paid for. If the Client fails to do so, then MarQuest may enter
the Client's premises and take possession of them. Until they have been returned,
the Client shall be solely responsible for their safe keeping and will not use them
for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at
expiry or termination shall not be affected, 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; and
(d) clauses which expressly or by implication have effect after termination shall
continue in full force and effect.
14.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond
the reasonable control of MarQuest including but not limited to strikes, lock-outs
or other industrial disputes (whether involving the workforce of MarQuest or any
other party), failure of a utility service or transport network, act of God, war,
riot, civil commotion, malicious damage, compliance with any law or governmental
order, rule, regulation or direction, accident, breakdown of plant or machinery,
fire, flood, storm or default of suppliers or subcontractors.
(b) MarQuest shall not be liable to the Client as a result of any delay or failure
to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents MarQuest from providing any of the Services
for more than 4 weeks, MarQuest shall, without limiting its other rights or remedies,
have the right to terminate this Contract immediately by giving written notice to
14.2 Assignment and subcontracting:
(a) Marquest shall not, without the prior written consent of MarQuest, assign, transfer,
charge, subcontract or deal in any other manner with all or any of its rights or
obligations under the Contract.
(b) The Client shall not, without the prior written consent of MarQuest, assign,
transfer, charge, subcontract or deal in any other manner with all or any of its
rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in
connection with this Contract shall be in writing and shall be delivered to the other
party personally or sent by prepaid first-class post, recorded delivery or by commercial
courier, at its registered office (if a company) or (in any other case) its principal
place of business, or sent by fax to the other party's main fax number.
(b) Any notice or other communication shall be deemed to have been duly received
if delivered personally, when left at the address referred to above or, if sent by
pre-paid first-class post or recorded delivery, at 10.00 am on the second Business
Day after posting, or if delivered by commercial courier, on the date and at the
time that the courier's delivery receipt is signed, or if sent by fax, on the next
Business Day after transmission.
(c) This clause 14.3 shall not apply to the service of any proceedings or other documents
in any legal action. For the purposes of this clause, "writing" shall not include
e-mails and for the avoidance of doubt notice given under this Contract shall not
be validly served if sent by e-mail.
(a) A waiver of any right under the Contract is only effective if it is in writing
and shall not be deemed to be a waiver of any subsequent breach or default. No failure
or delay by a party in exercising any right or remedy under the Contract or by law
shall constitute a waiver of that or any other right or remedy, nor preclude or restrict
its further exercise. No single or partial exercise of such right or remedy shall
preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are
cumulative and do not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract
(or part of any provision) is invalid, illegal or unenforceable, that provision or
part-provision shall, to the extent required, be deemed deleted, and the validity
and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid,
enforceable and legal if some part of it were deleted, the provision shall apply
with the minimum modification necessary to make it legal, valid and enforceable.
14.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to,
constitute a partnership or joint venture of any kind between any of the parties,
nor constitute any party the agent of another party for any purpose. No party shall
have authority to act as agent for, or to bind, the other party in any way.
14.7 Third parties: A person who is not a party to the Contract may not enforce any
of its terms under the Contracts (Rights of Third Parties) Act 1999.
14.8 Variation: Except as set out in these Conditions, any variation, including the
introduction of any additional terms and conditions, to the Contract, shall only
be binding when agreed in writing and signed by MarQuest.
14.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising
out of or in connection with it or its subject matter or formation (including non-contractual
disputes or claims), shall be governed by, and construed in accordance with, English
law, and the parties irrevocably submit to the exclusive jurisdiction of the courts
of England and Wales.
Version History Date Amendment
1.0 June 1994
2.0 June 2009 Update to reflect new products and services
3.0 December 2011 Revision to accommodate client feedback and legal review
3.1 December 2011 Clause renumbering and minor edits
3.2 November 2012 Changes to personnel