TERMS AND CONDITIONS OF HARTWOOD PIONEER MEMORIAL WALL LIMITED FOR PREPARATION WORKS FOR A SPACE IN THE MEMORIAL WALL AND MAINTENANCE OF A MEMORIAL BOX WITHIN THE WALL
Definitions and interpretation
In these terms and conditions, the following words have the following meanings:
Access hours: the daylight hours we permit you access to the Memorial Wall as displayed from time to time at the Memorial Office.
Agreement: these terms and conditions and the Order Confirmation.
Authorised Persons: any person named by you in the attached order confirmation who is able to provide your name and address and of the number of the Memorial Box.
Commencement Date: the date specified in the Order Confirmation.
Deposit: the amount specified in the Order Confirmation.
Due Date: the date specified in the Order Confirmation for the initial payment and the corresponding date each following payments set out in the Order Confirmation.
Items: anything you store in the Memorial Box at any time during this agreement.
Order Confirmation: the order confirmation setting out the price, location, design specification attached to these terms and conditions.
Our Fees: the amount set out in the Order Confirmation plus any other charges which shall also be paid by you where it is or it becomes applicable plus any VAT which is or may become payable.
Our other fees: our fees for any other service we agree to provide to you and any VAT payable that may be incurred by you from time to time.
Memorial Box: the memorial box, the specifications of which are set out in the Order Confirmation.
Memorial Office: the office and reception facility adjacent to the Memorial Wall site.
Memorial Wall: the land at Hartwood Farm, Chorley, Lancashire identified on the plan.
Plan: the plan attached to this licence identifying the Memorial Wall site and the area of the Memorial Wall within which the Memorial Box will be placed.
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement tax and any similar additional tax.
We, Us, Our: Hartwood Pioneer Memorial Wall Limited, our successors and assigns.
You, Your: the customer identified in the Order Confirmation.
Working Day: any day which is not a Saturday, a Sunday, a bank holiday or a public holiday in England.
Works: preparatory works and construction works at the site of the Memorial Wall necessary on the Memorial Wall to be able to accommodate the Memorial Box.
1. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2. A reference to writing or written excludes fax and e-mail.
3. Any obligation on a party not to do something includes an obligation not to allow that thing to be done and an obligation to use best endeavours to prevent that thing being done by another person.
Agreement to Prepare Memorial and Licence
So long as our fees are paid up-to-date:
1. We shall use reasonable endeavours to procure and that the Works to be carried out at the side are completed as soon as practicable following the date of this agreement; and on completion of the Works we shall:
2. Repair, maintain and replace the Memorial Wall and any part of it to a good standard of repair appropriate for a lasting and permanent high quality memorial;
3. Grant a licence to keep the Memorial Box and the Items in the Memorial Wall in accordance with this agreement from the completion of the Works; and
4. Grant a licence to have access to the Memorial Wall at any time during the Access Hours only for the purposes of visiting to paying respects and inspecting the Memorial Box for damage or as set out in the directions in the Order Confirmation. No access to the memorial wall will be permitted for any other purposes or outside access powers without express written permission from us. We will try to provide advance warning of changes to the access hours by notices at the memorial office, but we reserve the right to change access hours powers to other reasonable access times at any time without giving prior notice.
Preparation of the Memorial Box
1. Only you and any named authorised persons will be allowed to have access to the Memorial Box in accordance with your directions set out in the Order Confirmation. Any such person is your agent for whose actions you are responsible and liable to us and have other purchases of memorials at the Memorial Wall. We may ask for proof of identity from you or any other person at any time (although we are not obliged by this agreement or otherwise to do so) and we may refuse access to any person (including you) who is unable to provide satisfactory proof of identity if requested to do so. We may refuse you or your agent access at any time if we consider in our sole discretion that the safety of any person at the Memorial Wall or the security of the Memorial Box or the Items or other memorial boxes all their items will be put at risk.
2. The Memorial Box will be securely locked in the manner described in the Order Confirmation and may only be opened by us in accordance with the instructions you set out in the Order Confirmation, save as provided otherwise in this agreement. We do not accept any liability for any persons including our employees or agents holding a key or other means of access to the Memorial Box and the items and any such employee or agent acts as your agent only.
Access by us to the Memorial Box
1. You permit us and our agents and contactors to access the Memorial Box and if necessary to do so by force:
2. If we are required to carry out necessary repairs, maintenance and alterations to the memorial wall or any Memorial Box all part of the Memorial Wall;
3. If we reasonably believed that the Memorial Box contains any items described in condition 6 below or is being used in breach of the condition 7 below;
4. For the purpose of ascertaining whether the Memorial Box contains any items described in condition 7 or if we reasonably consider that such access is necessary to ascertain whether action needs to be taken to prevent injury or damage to persons or property;
5. If we are required by law to do so by the Police, Customs, Fire Services, Local Authority or by a Court Order;
6. For any purpose including that in condition 4.1(a) if we believe it is necessary in an emergency;
7. To obtain access in accordance with any other condition set out in these terms and conditions or in accordance with your directions as set out in the Order Confirmation;
8. To prevent injury or damage to persons or property, provided that we shall use reasonable endeavours to minimise any damage to the Memorial Box or the items and shall, to the extent reasonably possible, reinstate the Memorial Box and the items to a state of repair no worse than the condition prior to such causing any damage as soon as is practicable.
Ownership of items
1. You warrant that the items in the Memorial Box from time to time are your own property or that the person who owns or has an interest in them has giving you a remarkable authority and that you act as a duly authorised agent of any such person. You indemnify us against any loss or damage suffered by us in breach of this warranty including against any loss, damage or expenses incurred by us (including any reasonably incurred legal fees) arising from any step or action taken by any person who owns or has an interest in the goods.
1. We reserve the right to refuse to permit you to store any items will require the removal of and collection of any items from the Memorial Box if in our opinion the safety of any person at the Memorial Wall or the Memorial Office or the security of the Memorial Box or its contents, or other memorial boxes or their contents would be put at risk by the storage for continued storage of any such items.
Items not permitted in memorial boxes
1. You must not place (and you must not allow any other person to place) any of the following in the Memorial Box:
2. Food or perishable goods, unless securely packed and approved by us;
3. Plants, birds, fish, animals or any other creatures;
4. Combustible or flammable materials or liquids such as gas, Paint, petrol, oil or cleaning solvents;
5. Firearms, weapons, ammunition, explosives all the components thereof;
6. Chemicals, radioactive materials, biological agents;
7. Toxic waste, asbestos or other materials of potentially dangerous nature;
8. Any item which emits any fumes, smell or odour;
9. Any illegal substances, illegal items or goods illegally obtained;
10. Compressed gases;
11. Banknotes or coins or any other item of significant monetary value unless declared to us and expressly permitted by us in writing.
The items and materials set out in this list are not exhaustive and we may add to this list of prohibited items at any time by displaying a notice at the Memorial Office in writing.
Acceptable conduct at the memorial wall
Access to the Memorial Wall for you and any other person shall be on the condition that no visitor shall:
1. use the Memorial Box or do anything at the Memorial Wall or the Memorial Office which may be a nuisance to us or any person at the Memorial Wall or Memorial Office;
2. do anything at the Memorial Wall or in the Memorial Office which may invalidate any of our insurance policies or those of other Memorial Box purchasers or increase the premiums payable on them;
3. use the Memorial Box for any other purpose other than to keep the memorial items;
4. not to use the address of the Memorial Wall or the Memorial Office for receiving or sending post;
5. alter adjust or make any alteration whatever to the Memorial Box or the Memorial Wall;
6. attach anything to the internal or external surfaces of the Memorial Box or to the Memorial Wall;
7. allow any liquid, substance, smell or odour to escape from a Memorial Box or any noise to the audible or vibration to be felt outside the Memorial Box;
8. cause any damage to any memorial box or the Memorial Wall or the Memorial Office or any property belonging to us or any other Memorial Box purchaser or other persons at the Memorial Wall or Memorial Office;
9. leave anything in or cause any obstruction or undue hindrance in any passageway, stairway, service area or other part of the Memorial Wall or Memorial Office and must at all times exercise courtesy to others and reasonable care for personal safety and that others using such areas;
10. leave any waste or refuse other than in receptacles provided specifically for that purpose;
11. connect or provide any utilities or services whether by mains connection or locally.
We will maintain conditions of access to the Memorial Wall at the Memorial Office. Such conditions of access will include conditions that you and any other visitors to the Memorial Wall must:
1. use reasonable care when at the Memorial Wall or in the Memorial Office and take all reasonable care in respect of the Memorial Wall and the Memorial Office and any other property at the Memorial Wall and the Memorial Office;
2. inform us immediately of any damage or defect to the memorial boxes or the Memorial Wall;
3. comply with the reasonable directions of any of our employees, agents and contractors at the Memorial Wall and any further regulations for the use, safety and security of the Memorial Wall which we may issue from time to time;
4. pay for the reasonable cost of repairs or cleaning or making good any damage caused.
This agreement shall not confer on you any right to exclusive possession of any part of the Memorial Wall.
We may at any time and at our own cost move the Memorial Box to another comparable location within the area specified in the Order Confirmation.
1. You must pay us our fees on the date of this agreement and subsequent due dates as set out in the Order Confirmation.
2. If you do not pay fees 10 days after the due date you must pay us interest on all amount overdue for payment at the rate of 3% above the base rate of NatWest bank plc, calculated from the date when payment becomes due to and including the date of actual payment including all interests accrued, whether before or after judgement.
3. You must pay us the deposit on the date of this agreement. The deposit is non-refundable.
4. In the event that you do not pay any fees or charges, the items are left in the memorial box at your sole risk. We exclude any liability in respect of the items when payment of our fees and charges is overdue and exclude any duty of care howsoever arising.
1. We do not insure the items.
2. Keeping of the items in the memorial box is at your sole risk
3. You warrant that you have stated in the Order Confirmation the true total value of all the items to be placed in the memorial box.
Expiry and termination
1. Either party may terminate this agreement immediately by giving notice to the other if the other commits a serious breach of the terms of this agreement and (in the case of a breach capable of being remedied) shall have failed within 15 days after service of the notice to do so, to remedy the breach. The termination date shall be the date the notice is effectively served on you in accordance with condition below.
2. Any delay by us in exercising any of our rights under this agreement will not affect our rights or constitute a waiver of those rights, nor will any partial exercise of any right exclude a further exercise of that right.
Every provision in this agreement is severable and distinct from every other provision and if at any time one or more provision becomes invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected in any way.
This agreement can only be varied in writing signed by one of our directors. None of our other employees or agents has any authority to vary this agreement on our behalf whether orally or in writing or to make any representation of fact that is or may be inconsistent with the terms of this agreement.
You may not assign any of your rights under this agreement or part with possession of the memory box or the items once they are at the memorial wall to any other person, firm or company and breach of this condition is a serious breach under condition below.
This agreement shall not create a tenancy or constitute us as bailees of the items.
By entering into this agreement with us you consent to us processing your personal data for the purposes of fulfilling your order, which will involve us disclosing your personal data to contractors engaged to etch or engrave your Memorial Box in accordance with your instructions as set out in the Order Confirmation.
1. Any notice given under this agreement must be in writing and maybe served by personal delivery to the person notified or by delivery to its address or by pre-paid post. Your address for service of notices shall be your address for service in England in the Order Confirmation attached or any other address in England (and, if you are not resident in England, agent for service) which you notify to us in writing in advance. Any notice to us must be sent to our registered office address from time to time. A notice will be served at the time of personal delivery or 48 hours after it has been placed in the post.
2. You will inform us in writing of any changes to your billing details, contact details, alternative contact details or any other detail stated in this agreement.
These terms and conditions together with the attached Order Confirmation constitute the entire agreement between the parties and supersede and override any and all previous contractual terms and conditions.
Limitation of liability
Subject to clause 8.2, the Licensor is not liable for:
1. the death of, or injury to you or any visitor to the Memorial Wall authorised by you;
2. any theft, damage, destruction or loss of the Memorial Box or the Items;
3. any losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability incurred in the exercise or purported exercise of the rights granted by this agreement; or
4. any loss or damage suffered as a result of any cause beyond our control that prevents you from using the Memorial Box or any difficulty or interruption in obtaining access to the Memorial Box by reason of temporary works of repair, maintenance or renewal of the Memorial Wall or the Memorial Office.
Nothing in clause 8.1 shall limit or exclude the Licensor’s liability for:
1. death or personal injury or damage to property caused by negligence on the part of the Licensor or its employees or agents; or
2. any matter in respect of which it would be unlawful for the Licensor to exclude or restrict liability.
3. In the event of circumstances which are outside our reasonable control, we do not agree and are not obliged by this agreement to maintain the safety or security of the Items, the Memorial Box or the Memorial Wall in order to keep the items free from damage or loss. Neither you nor we shall have any liability under or be deemed to be in breach of this agreement for any delay or failure of performance of this agreement, which results from circumstances beyond the reasonable control of that party. Such circumstances include any act of God, right, strike or lockout, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, shortage of labour, materials or transport, electrical power failures, threat of or actual terrorism or environmental or health emergency or hazard, or entry into the Memorial Wall including the Memorial Box or the Memorial Office by, or arrest for seizure or confiscation of Items by competent authorities.
Third party rights
A person who is not a party to this licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this licence.
This licence 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 the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this licence or its subject matter or formation (including non-contractual disputes or claims).