GOOD GARAGE SCHEME
MEMBERSHIP TERMS AND CONDITIONS
1. Definitions and Interpretation
(a) The definitions and rules of interpretation in this condition apply in these terms and conditions (“Conditions”).
Applicant: a company, sole trader or business in the garage or motor vehicle servicing industry that completes an Application Form with the intention of becoming a Member.
Application Form: the application form attached to these Conditions that Forté requires Applicants to complete in order to apply to be a Member. Audit: an inspection of a Member and its business premises to ensure its compliance with the Code of Conduct and the Membership Contract. Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form. Forté: Forté Lubricants Limited registered in England and Wales under company number 559693 whose registered office is at Nexus House, Station Road, Egham, Surrey, England, TW20 9LB.
Good Garage Scheme: The brand that markets the Good Garage Scheme (GGS) to consumers. Good garages are those that follow the GGS code of conduct. Good Garage Scheme Website: www.goodgaragescheme.com or such other website address used by Forté in relation to the Good Garage Scheme.
In-put Material: all Documents, information and materials provided by the Member relating to its membership of the Good Garage Scheme. Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, 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.
Member: a member of the Good Garage Scheme.
Membership Contract: the Applicant’s completion and submission of an Application Form for membership of the Good Garage Scheme and Forté’s acceptance of it on these Conditions under condition 2(b).
Membership Fee: subject to any increase in such fee undertaken in accordance with condition 6(b).
(b) Headings in these conditions shall not affect their interpretation.
(c) A person includes a natural person, corporate or unincorporated body
(whether or not having separate legal personality).
(d) A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
(e) A reference to writing or written includes faxes [but not e-mail].
(f) Any obligation in the Membership Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
(g) References to conditions are to the conditions in these Conditions and the Membership Contract.
2. Application of Conditions
(a) These Conditions shall:
(i) apply to and be incorporated into the Membership Contract; and
(ii) prevail over any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing.
(b) Completion and submission of an Application Form constitutes an offer by the Applicant to become a Member on these Conditions. No offer placed by the Applicant shall be accepted by Forté other than by a written acknowledgement issued and executed by Forté when the Membership Contract for membership of the Good Garage Scheme on these Conditions will be established.
The Applicant’s standard terms and conditions (if any) attached to, enclosed with or referred to in the Application or other Document shall not govern the Membership Contract.
3. Application for Membership
(a) All Applicants applying for membership of the Good Garage Scheme must have a record of at least two years’ successful trading in the garage OR motor vehicle servicing industry and must provide satisfactory references from at least four customers if requested to do so. Forté has sole discretion to determine whether an Applicant has traded successfully for the prescribed period.
(b) Membership is not effective until all requirements set out in the Application Form, any accompanying information and these Conditions have been met by the Applicant, the first month’s Membership Fee has been paid and Forté has accepted the Application. Forté reserves the right to accept or reject any Application entirely at its discretion and any acceptance is conditional on the Applicant having met all of the criteria for membership set out in the Application Form, any accompanying information and these
Conditions and having completed the Application Form accurately and truthfully.
(c) Apart from sole traders, membership of the Good Garage Scheme is not open to individuals.
4. Forté’s Obligations
(a) Forté shall use reasonable endeavours to provide the membership benefits to the Member as set out in the “Membership Benefits”.
5. Member’s Obligations
(a) The Member shall:
(i) co-operate with Forté in all matters relating to its membership of the Good Garage Scheme, including all matters in respect of any Audit;
(ii) provide Forté, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Member’s premises, office accommodation, data and other facilities as reasonably required by Forté;
(iii) provide to Forté, in a timely manner, such In-put Material and other information as Forté may reasonably require and ensure that it is accurate in all material respects;
(iv) obtain and maintain all necessary licences and consents and comply with all relevant legislation and legal requirements in relation to carrying on its trade and business;
(v) ensure that it, and its agents, subcontractors, consultants and employees, complies with the Code of Conduct;
(vi) not represent that the Good Garage Scheme is relevant to any work other than in respect of servicing vehicles;
(vii) ensure that a GGS feedback card is issued to the customer upon completion of the work.
(b)(i) The Member shall maintain employer’s liability, public liability and liability under the Consumer Protection Act 1987 insurance policies with a reputable insurance company (or companies) for £1,000,000 and £5,000,000 of cover respectively.
(ii) The Member shall not breach, or allow any breach of, such policies.
(iii) If requested, the Member shall provide Forté with copies of all such policies and renewals.
(iv) The Member shall promptly pay all premiums for such policies and, if requested, provide Forté with evidence of payment of premiums and allow access to view the relevant insurance documents by a Forté representative.
(c) If Forté’s performance of its obligations under the Membership Contract is prevented or delayed by any act or omission of the Member, its agents, subcontractors, consultants or employees, Forté shall not be liable for any costs, charges or losses sustained or incurred by the Member arising directly or indirectly from such prevention or delay.
6. Membership Fee
(a) In consideration of the provision of the Membership Benefits by Forté, the Member shall pay the first month’s Membership Fee by direct debit and thereafter shall pay the Membership Fee by direct debit. The Member agrees that Forté may review and increase the Membership Fee entirely at its discretion provided that it shall not be increased more than once in any 12 month period. Forté will give the Member written notice of any such increase before the proposed date of the increase. If such increase is not acceptable to the Member, it may, within 1 month of such notice being received or deemed to have been received in accordance with condition ‘a’ terminate the Membership Contract by giving 1 month’s written notice to Forté OR with immediate effect by giving written notice to Forté.
(b) Without prejudice to any other right or remedy that it may have, if the Member fails to pay Forté its Membership Fee on the due date, Forté may:
(i) charge interest on such sum from the due date for payment at the annual rate of 1% above the base lending rate from time to time of the Bank of England base rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Member shall pay the interest immediately on demand. Forté may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(ii) suspend the Member’s membership of the Good Garage Scheme until payment has been made in full.
(c) Time for payment shall be of the essence of the Membership Contract.
(d) All sums payable to Forté under the Membership Contract shall become due immediately on its termination, despite any other provision. This condition 6(e) is without prejudice to any right to claim for interest under the law, or any such right under the Membership Contract.
(e) Forté may, without prejudice to any other rights it may have, set off any liability of the Member to Forté against any liability of Forté to the Member.
7. Audit
(a) Subject to condition 7(b) Forté, its agents, subcontractors, consultants or employees may at any time carry out an Audit.
(b) The Member will not be required to have an Audit more than once in every 12 month period provided that the most recent Audit was passed without any advisory actions to be followed up and provided that no complaints have
been made to Forté regarding the Member by any customer of the Member.(c) If the Member fails an Audit, Forté may terminate the Member’s Membership Contract with immediate effect (or following such notice period as it sees fit) without prejudice to any of Forté’s rights or remedies.
8. Complaints
Should we receive a complaint regarding the member, the member will be contacted and informed of the nature and detail of the complaint.
We are not responsible for resolving complaints or settling disputes but, entirely at our discretion, we may try to take reasonable steps to encourage the resolution of any complaint against the member that has been brought to our attention.
Complaints will be recorded on file and may be used to determine the member’s ongoing membership of the scheme. At our discretion, complaints we consider to be serious, detrimental to the scheme or is a failure to comply with the code of conduct may lead to instant removal from the scheme without further warning or notice.
9. Intellectual Property and Logo
All intellectual property rights (including all copyright, patents, trade marks, service marks, trade names, designs (including the "look and feel" and other visual or non-literal elements) whether registered or unregistered) of the Good Garage Scheme logo shall remain the property of the Good Garage Scheme and the Customer shall not obtain, and shall not attempt to obtain any title to any such intellectual property rights.
No part of the Service may be reproduced in any form or used in any other way except in accordance with these terms and conditions.
You will not copy, reproduce, modify, create derivatives works from, distribute, or publicly display any content from our sites without the prior expressed written permission of Forté.
Goodgaragescheme, Good Garage Scheme, Goodgaragescheme.co.uk,
the Good Garage Scheme and the Goodgaragescheme logo are registered trademarks of Good Garage Scheme. You must not use these or any other registered or unregistered trademarks on the Service without the prior written permission of Good Garage Scheme.
Good Garage Scheme grants the Customer a non-exclusive non-transferable licence to use the logo solely in executable form and only to the extent necessary for use of the Service and for no other purpose.
If membership of the Good Garage Scheme ceases to exist, the member is obliged to remove the Good Garage Scheme logo and any links to the Good Garage Scheme website. This includes advertising, stationery, signage and use on the Internet websites.
10. Forté’s Property
a) All materials, whether marketing materials or otherwise, and data supplied by Forté to the Member shall, at all times, be and remain the exclusive property of Forté, but (unless marketing materials that are appropriately given to customers of the Member in due course of the Member’s business), shall be held by the Member in safe custody at its own risk and maintained and kept in good condition by the Member until returned to Forté, and shall not be disposed of or used other than in accordance with the Members written instructions or authorisation.
11. Limitation of liability - THE MEMBER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
(a) This condition 11 sets out the entire financial liability of Forté (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Member in respect of:
(i) any breach of the Membership Contract including any deliberate breach of the Membership Contract by Forté, or its employees, agents or subcontractors;
(ii) any use made by the Member of the Membership Benefits or any part of them; and
(iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Membership Contract.
(b) All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Conditions and the Membership Contract.
(c) Nothing in these Conditions limits or excludes the liability of Forté:
(i) for death or personal injury resulting from negligence; or
(ii) for any damage or liability incurred by the Member as a result of fraud or fraudulent misrepresentation by Forté; or
(iii) for anything for which it would be illegal for Forté to exclude or restrict, or attempt to exclude or restrict, its liability.
(d) Subject to condition 11(b) and condition 11(c)(i) Forté shall not be liable for:
(A) loss of profits; or
(B) loss of business; or
(C) depletion of goodwill and/or similar losses; or
(D) loss of anticipated savings; or
(E) loss of goods; or
(F) loss of contract; or
(G) loss of use; or
(H) loss of corruption of data or information; or
(I) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
ii) Forté’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Membership Contract shall be limited to the Membership Fee paid.
12. Data
(a) The Member acknowledges and agrees that details and information
(other than personal data) submitted to Forté are not confidential and may be used by Forté without restriction, and that personal data will be processed by and on behalf of Forté in connection with the Membership Benefits and membership of the Good Garage Scheme.
(b) The Member agrees that some of its details and data, including its membership status, will be made available to members of the public on the Good Garage Scheme Website and/or in response to queries received from members of the public by telephone or otherwise.
(c) The Member agrees that feedback received from customers of the Member may, entirely at Forté’s discretion, be displayed on the Good Garage Scheme Website.
13. Termination
a) Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Membership Contract without liability to the other on giving the other not less than 1 month’s written notice and Forté may terminate the Membership Contract immediately on giving notice to the Member if:
(i) the Member fails to pay any amount due to Forté for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
(ii) the Member commits a breach of any of the terms of the Membership 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; or
(iii) the Member repeatedly breaches any of the terms of the Membership Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Membership Contract; or
(iv) at the entire discretion of Forté, the Member’s conduct has brought or is likely to bring the Good Garage Scheme into disrepute; or
(v) one or more complaint by a customer of the Member has been made about the Member which Forté at its entire discretion believes is justified; or
(vi) the Member fails an Audit; or
(vii) the Member has provided false or misleading information on the Application Form or otherwise in relation to its membership; or
(viii) the Member ceases to meet the criteria for membership of the Good Garage Scheme; or
(ix) the Member 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 a natural person) 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; or
(x) the Member 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 for the sole purpose of a scheme for a solvent amalgamation of the Member with one or more other companies or the solvent reconstruction of the Member; or
(xi) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Member other than for the sole purpose of a scheme for a solvent amalgamation of the Member with one or more other companies or the solvent reconstruction of the Member;
(xii) 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 Member; or
(xiii) a floating charge holder over the assets of the Member has become entitled to appoint or has appointed an administrative receiver; or
(xiv) a person becomes entitled to appoint a receiver over the assets of the Member or a receiver is appointed over the assets of the Member; or
(xv) a creditor or encumbrancer of the Member 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; or
(xvi) any event occurs, or proceeding is taken, with respect to the Member in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 13(a)(ix)13(a)(iv) to condition 13(a)(xv) (inclusive); or
(xvii) the Member suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(xviii) there is a change of control of the Member (as defined in section 574 of the Capital Allowances Act 2001).
(b) On termination of the Membership Contract for any reason:
(i) the Member shall immediately pay to Forté any outstanding unpaid Membership Fees and any interest owed;
(ii) the Member shall, within a reasonable time, return all of Forté’s materials, whether marketing materials or otherwise, and data supplied by Forté to the Member. If the Member fails to do so, then Forté may enter the Member’s premises and take possession of them. Until they have been returned or repossessed, the Member shall be solely responsible for their safe keeping;
(iii) the Member will remove all references to the Good Garage Scheme from its website, premises, marketing material and stationery within a period of 2 weeks. After such period, any continued use of the Good Garage Scheme name or logo will be an infringement of the intellectual property rights of Forté; and
(iv) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
(c) On termination of the Membership Contract (however arising), the following conditions shall survive and continue in full force and effect:
(i) condition 9;
(ii) condition 10;
(iii) condition 11;
(iv) condition 13; and
(v) condition 24.
14. Indemnity
(a) The Member indemnifies Forté against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Forté arising out of or in connection with:
(i) the Member’s breach or negligent performance or non-performance of any part of these Conditions or the Membership Contract;
(ii) any claim made against Forté for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with your membership or purported membership of the Good Garage Scheme; and
(iii) any claim made against Forté by a customer of the Member arising out of or in connection with the Good Garage Scheme to the extent that such claim arises out of the breach, negligent performance or failure or delay
in performance of the Membership Contract or any of its obligations in relation to the Good Garage Scheme by the Member, its employees, agents or subcontractors.
(b) This indemnity shall apply whether or not Forté has been negligent or at fault.
(c) If a payment due from the Member under this condition 14 is subject to tax (whether by way of direct assessment or withholding at its source), Forté shall be entitled to receive from the member such amounts as shall ensure that the net receipt, after tax, to Forté in respect of the payment is the same as it would have been were the payment not subject to tax.
15. Force Majeure
Forté shall have no liability to the Member under the Membership Contract if it is prevented from, or delayed in performing, its obligations under the Membership Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Forté 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.
16. Variation
Forté has the right to amend and revise these Conditions from time to time. If these Conditions are amended or revised, Forté shall notify the Member. It is the Member’s responsibility to keep up-to-date with such changes and the Member’s continued membership of the Good Garage Scheme shall be deemed acceptance of any changes to these Conditions.
17. Waiver
(a) A waiver of any right under the Membership Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Membership 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 Membership Contract are cumulative and do not exclude rights provided by law.
18. Severance
(a) If any provision of the Membership Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Membership Contract, and the validity and enforceability of the other provisions of the Membership Contract shall not be affected.
(b) If a provision of the Membership Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
19. Entire Agreement
(a) The Membership Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
(b) Each party acknowledges that, in entering into the Membership Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
(c) Nothing in this condition shall limit or exclude any liability for fraud.
20. Assignment
(a) The Member shall not, without the prior written consent of Forté, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Membership Contract.
(b) Forté may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Membership Contract and may subcontract or delegate in any manner any or all of its obligations under the Membership Contract to any third party or agent.
(c) Each party that has rights under the Membership Contract is acting on its own behalf and not for the benefit of another person.
21. No Partnership or Agency
Nothing in the Membership 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.
22. Rights of Third Parties
A person who is not a party to the Membership Contract shall not have any rights under or in connection with it.
23. Notices
(a) Any notice or other communication required to be given under the Membership Contract shall be in writing and shall be delivered personally, or sent by email, pre-paid first-class post, recorded delivery or by commercial courier to the other party.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the contact specified by t he relevant party or, if sent by pre-paid first-class post or recorded delivery, at 9.00 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.
(c) This condition 23 shall not apply to the service of any proceedings or other documents in any legal action.
24. Governing Law and Jurisdiction
(a) The Membership 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, the law of England and Wales.
(b) The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Membership Contract or its subject matter or formation (including non-contractual disputes or claims).
November 2018