TERMS AND CONDITIONS OF SALE QA FLOORING SOLUTIONS LTD
1.1 In these Terms, the following definitions apply: Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business; CA06: the Companies Act 2006; Company: QA Flooring Solutions Ltd, a company incorporated in England no. 07870268 whose registered office is at Unit 2, Hurricane Drive, Liverpool, L24 8RL; Contract: the contract between the Company and the Customer for the sale and purchase of Goods in accordance with these Terms, any Order, and any other document expressly incorporated into the Contract; Customer: the person or firm who purchases Goods from the Company; Data Protection Laws: as binding on either party or the Deliverables including: (a) the GDPR; (b) the Data Protection Act 2018; (c) any laws implementing such laws; and (d) laws replacing, extending, re-enacting, consolidating or amending of the foregoing; Force Majeure Event: has the meaning given in clause 17; Goods: the goods (or any part of them) set out in the Order; IA06: the Insolvency Act 1986; IPR: 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; Manufacturer Warranties: the Luvanto Click Plus Product warranty, Luvanto Click and Soundclick Product Warranty, Luvanto Endure Pro Product Warranty, Luvanto Design Installation, Instruction and Warranty are incorporated into these Terms and any other manufacturer’s warranty that may attach to the Goods as confirmed in writing by the Company from time to time; Order: the Customer’s order for the Goods, as set out overleaf; Personal Data: the meaning given in the applicable Data Protection Laws from time to time; Processor, processing: the meaning given in applicable Data Protection Laws from time to time; (and related expressions, including process, processed, and processes shall be construed accordingly). Protected Data: Personal Data received from or on behalf of the Customer in connection with the performance of the Company’s obligations under the Contract; Specification: any Customer technical specification for the Goods, including any related plans and drawings agreed between the parties; Terminate/Termination: termination of this Contract, howsoever caused; Terms: the terms and conditions set out in this document as amended from time to time in accordance with clause 20.6; and Usage means each and any of the storing, installing and/or maintaining of the Goods after purchase, and Use takes the cognate meaning.
1.2 A person includes a natural or corporate person. Any phrase introduced by the terms including, include, in particular, such as or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. A reference to writing or written includes e-mail and other written forms of social media communications system such as WhatsApp and Signal. Any obligation in this Contract on a person not to do something includes an obligation not to agree or allow that thing to be done. A reference to this/the Contract or to any other agreement or document referred to in this/the Contract is a reference to this Contract or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Contract) from time to time. If there is any conflict between these Terms and an Order or other document expressly incorporated into the Contract, these Terms shall prevail. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted from time to time including all subordinate legislation made under that statute or statutory provision, as amended or re-enacted from time to time.
1.3 This Contract shall be binding on, and inure to the benefit of, the parties to this Contract and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
- BASIS OF CONTRACT
2.1 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. This Contract constitutes the entire agreement between the parties, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2.2 The Customer acknowledges that in entering into the Contract it does not rely on, and shall have no remedies for, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract and shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
2.3 Each Order constitutes a separate offer by the Customer to purchase the Goods in accordance with these Terms, and the Company shall be free to accept or decline such Order at its absolute discretion. The Company shall have no liability if the terms of the Order and any applicable Specification are incomplete and/or inaccurate. In particular, when the Company acknowledges an order setting out what it understands it is to supply, it is the Customer’s responsibility to check the acknowledgement, and to inform the Company promptly of any inaccuracy. If the Company delivers in accordance with such acknowledgement and the Goods are in any way not what the Customer wished to purchase, then, subject to clause 4.3, the Customer must nevertheless accept the Goods, and shall be liable to pay in full, and if it wishes further or different Goods must make a new Order. An Order shall be deemed accepted when the Company acknowledges it (unless the Customer promptly informs the Company of any inaccuracies, as above), or, if not acknowledged, when the Company tries to fulfil the Order, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter, or advertising that the Company produces and any descriptions or illustrations in Company catalogues, brochures, website or other online media channels are produced solely to give an approximate idea of the Goods described, do not form part of the Contract and have no contractual force.
2.5 A Company quotation for Goods shall not constitute an offer. A quotation shall not be valid after 20 Business Days from its date of issue.
2.6 The Customer warrants and represents that in entering into the Contract it does so on a business-to-business basis and not as a consumer.
3.1 To the extent that Goods are provided according to a Specification supplied by the Customer, the Customer shall indemnify the Company and hold the Company harmless 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) the Company may suffer or incur in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of the Specification. This clause 3.1 shall survive Termination.
3.2 Any samples, drawings, images, descriptive matter, or advertising the Company produces and any descriptions or illustrations in Company catalogues, websites or brochures are produced solely to give an approximate idea and illustration of the Goods described in them. Although the Company makes every effort to display these accurately, the Company is not be liable for Goods’ inconsistency with such images and illustrations. They do not form part of the Contract or have any contractual force and the Customer may not rely on them. Weights are approximate, and colour and consistency may vary. The Company will make every effort to be as accurate as possible in complying with the Specification. Goods shall have a Specification tolerance of at least 5%. The Company may amend any Specification if statute or regulation so require.
3.3 If Goods ordered become unavailable, the Company shall notify the Customer as soon as reasonably practicable (a) suggesting alternative Goods similar to those in the Order, and (b) providing the Customer with the option to terminate or vary the Order.
- DELIVERY AND PACKAGING
4.1 The Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location) at any time the parties agree, or as the Company indicates. Offloading shall be a Customer responsibility: the Company shall not be liable for damage occurring to Goods in offloading. Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location before offloading or upon the Customer’s loading the Goods at the Company’s location.
4.2 Dates quoted for delivery are approximate; time of delivery is not of the essence. The Company shall not be liable for delay in delivery caused by a Force Majeure Event or Customer inadequate delivery instructions or not meeting its Contractual obligations. Delays in the delivery of an Order shall not entitle the Customer to: (a) refuse to take delivery of the Order; (b) claim damages; or (c) Terminate, subject to clauses 12 and 17.3.
4.3 Subject to clause 4.6, the Customer shall procure that at delivery any employee or contractor of the Customer is present (and thereby deemed the Customer’s authorised representative) and checks the Goods delivered, setting out any discrepancy in writing on the delivery note before signing. The Customer must also, within three Business Days of delivery, notify the Company in writing any discrepancies or damages to the Goods giving full details (including in respect of damaged Goods: photographs) to [email protected], and the Company need not for credit purposes consider any query raised otherwise. The Customer may not reject Goods on the basis of the Company delivering up to and including 5% more or less than the quantity ordered. If the Company removes any rejected Goods from the Customer other than at the time of delivery, the Customer shall be liable for the cost of such collection.
4.4 If the Customer does not accept Goods’ delivery within three Business Days of the Company notifying it of the attempted delivery, then, unless such non-acceptance is caused by a Force Majeure Event or the Company’s not meeting its Contractual obligations: (a) the Goods’ delivery shall be deemed completed at 9.00 am on the third Business Day after the day the Company notified the Customer that the Goods were ready; and (b) the Company shall store the Goods until delivery is reorganised and may charge the Customer for all related costs and expenses (including insurance, administration and redelivery charges). If 10 Business Days after the day on which the Company notified the Customer that the Goods were ready and the Customer has not accepted the Goods’ delivery, the Company may resell or otherwise dispose of part or all of the Goods and may charge administrative charges to the Customer for the disposal costs.
4.5 In the event of a failed / refused delivery, the Company may charge the Customer a restocking charge of the greater of £20 or 20% of the sales value of the rejected or returned Goods, and also delivery cost charged by carrier to the Company and/or any other Company collection costs.
4.6 The Company may permit deliveries without the Customer’s authorised representative present by prior written agreement, in which case the Goods will be deemed delivered and accepted in full in accordance with the relevant paperwork at the time of delivery.
4.7 The Company may with Customer consent deliver Goods by instalments, each instalment invoiced and paid for separately, and constituting a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.8 The Customer may change or cancel an Order before the Goods’ dispatch from the Company’s warehouse with no charge if cancellation is in writing, quoting the order number, addressed to [email protected] and the Customer has received e-mail acknowledgement confirming cancellation is accepted and that goods have not yet been despatched. If the Company has already despatched the Goods or an instalment, and the Customer rejects or returns any or all of the despatched Goods, the Company may treat the rejected or returned Goods as a failed/refused delivery in accordance with clause 4.5.
4.9 Unless the parties agree otherwise, packing cases and materials other than pallets are included in the price. Unless returnable, the Customer will dispose of all packaging in accordance with all relevant Law.
Subject to clause 9, the Company warrants on and from the date of payment in full of an invoice in respect of specific Goods that those Goods shall on delivery: (a) conform in all material respects with their description; (b) be free from material defects in design, material and workmanship; and (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979). Goods shall be subject to applicable Manufacturer Warranties.
- ACCEPTANCE AND DEFECTIVE PRODUCTS
6.1 The Customer may reject any Goods delivered to it that do not comply with clause 5, provided that: (a) it gives notice of rejection to the Company (including in the case of (b) following, photographs of the defect); (b) in the case of a defect apparent on normal visual inspection, within three Business Days of Delivery; (c) in the case of a latent defect, within a reasonable time of the latent defect becoming apparent (taking into account any manufacturer warranties); and (d) no event in clause 6.2 applies. If the Customer does not give notice of rejection in accordance with this clause it shall be deemed to have accepted these Goods.
6.2 The Company shall not be liable for any Goods’ failure to comply with the warranty set out in clause 5 if: (a) the Customer makes any use of those Goods after giving notice in accordance with clause 6.1; (b) the Customer (or any applicable installer of the Goods) does not follow Manufacturer Warranties or Manufacturer instructions that the Customer is aware of or ought reasonably to be aware of; (c) the defect arises because the Customer has not followed the Company’s oral or written instructions (if any) for the storage, commissioning, installation, use and/or maintenance of the Goods (and in the case of any ambiguity or other lack of clarity in such instructions, the Customer must check with the Company for the correct procedure) or (if there are none) good trade practice regarding the same; (c) the defect arises as a result of the Company following any Customer drawing, design or Specification; (d) the Customer alters or repairs Goods without the Company’s written consent; (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (f) the Goods differ from their description or Specification as a result of changes to procure that they comply with applicable statutory or regulatory requirements.
6.3 If the Customer rejects Goods under clause 6.1 then at the Customer’s option, the Company shall either (a) repair or replace the rejected Goods; or (b) repay the price of the rejected Goods in full. Once the Company has complied with such requirement, it shall have no further liability to the Customer for the rejected Goods’ failure to comply with clause 5.
6.4 If the parties dispute about any Goods complying with clause 5 (only), either party may refer the matter to an Expert for determination in accordance with clause 11.
6.5 Subject to clause 6.6, if: (a) the Customer gives notice in writing to the Company within a reasonable time of discovery that some or all of the Goods do not comply with the warranties set out in clause 5, and in any event within three Business Days of delivery; and (b) the Company is given up to five further Business Days to examine such Goods (unless the Company, at its absolute discretion, declines to carry out an examination) before any remedial or additional works are carried out by or on behalf of the Customer, then the Company shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The Company shall have no liability to the Customer in respect of the Goods unless the Customer complies with this clause 6.5.
6.6 Except as provided in this clause 6, the Company shall have no liability to the Customer in respect of the Goods’ failure to comply with clause 5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract. These Terms shall apply to any repaired or replacement Goods supplied by the Company. Any warranty or guarantee given under these Terms shall not be applicable outside the United Kingdom unless the parties agree otherwise.
- RISK AND TITLE
7.1 Risk in the Goods shall pass to the Customer on completion of delivery. If the Goods are delivered in instalments, the risk shall pass to the Customer on completion of each individual instalment. Title and property in the Goods, including full legal and beneficial ownership, shall not pass to the Customer until the Company has received in cash or cleared funds payment in full for all Goods delivered to the Customer under this and all other contracts between the parties and interest or other sum payable under the terms of this and all other contracts between the parties. Until title to the Goods has passed to the Customer, the Customer shall at its own cost: (a) notify the Company immediately if it becomes subject to any of the events listed in clause 12.2; (b) give the Company such information relating to the Goods as the Company may require from time to time; (c) store those Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property; (d) not remove, deface or obscure any identifying mark or packaging on or relating to those Goods; and (e) maintain those Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks with an insurer reasonably acceptable to the Company. The Customer shall obtain an endorsement of the Company’s interest in the Goods on its insurance policy, subject to the insurer being willing to make the endorsement. On request the Customer shall allow the Company to inspect those Goods and the insurance policy.
7.2 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.2, or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may thereafter at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order (unless (i) manifestly incorrect by reference to quotation or other relevant correspondence, or (ii) if a different price is stated in an acknowledgement of the Order), or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery. The Company may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods to the Company due to: (a) any factor beyond the Company’s control (including foreign exchange fluctuations, shipping costs, increases in taxes and duties, customs charges, storage charges, and increases in labour, materials and other manufacturing costs); (b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; and/or (c) any delay caused by any Customer instructions or the Customer not giving the Company adequate or accurate information or instructions. The Goods’ price is exclusive of costs and charges of packaging, insurance and transport of the Goods, which if invoiced shall be payable by the Customer. The Customer warrants and represents that it shall pay the price set out on each invoice in full without dispute unless such dispute is raised within three Business days of receiving such invoice.
8.2 The price of the Goods is exclusive of amounts in respect of value added tax or equivalent tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods. For Customers whose location to which the Company is to deliver is outside England, Wales or Scotland (including offshore islands), delivery shall be on such INCOTERMS 2020 basis as the parties may agree.
8.3 The price for the Goods shall be paid in full and cleared funds on or before delivery unless the Customer has a credit account with the Company. Unless otherwise agreed in writing, when the Customer has an account, payment shall be made by the 20th day of the month following the date of invoice. The Company may at any time in its absolute discretion, close a Customer’s account and any balances due, shall be payable immediately by the Customer. Payment must be made to the bank account nominated in writing by the Company. Time of payment is of the essence. If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (due date), then without prejudice to the Company’s other remedies, the Customer: will be liable to the Company, in addition to any unpaid amount that should properly have been paid, (a) for simple interest on that amount (accruing on a daily basis from the final date for payment until the date of actual payment, whether before or after judgment), calculated at a rate of 8% per year above the Bank of England base rate current at the date the payment became overdue. It is agreed that this clause’s provisions constitute a substantial remedy for the purposes of section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998; and (b) for any administrative, legal or any other costs the Company may incur in connection with recovering any overdue amounts from the Customer.
8.4 All amounts payments payable to the Company by the Customer under the Contract shall become immediately due and payable if the Customer becomes subject to any event listed in clause 12.2. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer may not assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer. The Company may at any time, without notice to the Customer, set off any liability of it to the Customer against any liability the Customer has to it, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by a party of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise. The Customer may not set off any liability the Company has to it against the Customer’s liabilities to the Company.
8.5 This clause 8 is without prejudice to any Company right to claim for interest under the law or under the Contract.
- USE, HEALTH AND SAFETY
The Customer shall be responsible (at its own cost) for Usage and the Company shall have no responsibility to the Customer in respect of Usage. The Customer or a third party acting to the Customer’s instructions must Use the Goods strictly in accordance with the Company’s express instructions where provided and the Manufacturer’s Warranties using all applicable adhesives, tools and equipment. The Customer acknowledges that the Company is not providing Usage services and the Company does not control the Usage. Accordingly, the Customer acknowledges that if it or a third party acting to the Customer’s instructions does not Use the Goods in accordance with the Company’s instructions or the Manufacturer’s Warranties, clause 5 shall be deemed to be invalid and of no effect and the Company shall have no liability whatsoever to the Customer (or any third party) under clause 5. In Usage of the Goods by the Customer or any third party acting to the Customer’s instructions, the Customer must procure that its personnel and all others Using the Goods are aware of all relevant instructions and comply with all relevant health and safety law. The Customer indemnifies and will continue to indemnify and holds the Company harmless against any claim for loss, cost, damage or expenses (howsoever arising) relating to Usage.
- ADVICE, INFORMATION AND OPINION
The Customer takes any advice, information and/or opinion given by any partner, employee or agent of the Company at the Customer’s own risk. The Company shall not be liable for loss or damage the Customer may incur from acting upon such advice, information and/or opinion. The Customer further must satisfy itself as to the Goods’ suitability for their particular purpose and the Customer shall be deemed to have done so upon making an Order. The Company shall have no liability for any loss or damage so however arising in respect of the Goods’ suitability or fitness for purpose.
- EXPERT DETERMINATION
11.1 An Expert is a person appointed in accordance with this clause 11 to resolve any dispute relating to clause 5 in accordance with clause 6.4.
11.2 Where under the Contract a matter requires resolving, the Company shall appoint an Expert and agree with the Expert the terms of his appointment. The Expert shall be qualified to provide evidence at court if required. When this occurs, the Expert shall be in the case of a dispute relating to the Specification, quality or condition of the Goods an expert in such matters. If the Company cannot appoint an Expert (or agree the terms of the Expert’s appointment) within ten Business Days fourteen days of requiring an Expert, either party may appoint a qualified Expert of repute with experience in the type of matter to which the dispute relates. The parties shall instruct the Expert to prepare a written decision including reasons and give notice (including a copy) of the decision to the parties within three months of the matter referred to the Expert. The Expert shall act as an expert and not as an arbitrator. The Expert shall determine the matters referred to the Expert under the Contract, which may include any issue about interpretating provisions of the Contract, the Expert’s jurisdiction to determine the matters and issues referred to the Expert and the terms of reference. The Expert’s written decision on the matters referred to the Expert shall be final and binding on the parties in the absence of manifest error or fraud.
11.3 Each party shall with reasonable promptness supply the other with all information and give each other access to all documents, personnel and things as the other may reasonably require to make a submission under this clause 11. The parties may make submissions to the Expert including oral submissions and will provide (or procure that other provide) the Expert with any assistance and documents as the Expert reasonably requires to reach a decision. The Customer shall grant the Expert access to their premises, or the location of the Usage of the Goods, in order that the Expert can inspect the Usage. Each party shall act reasonably and co-operate to give effect to the provisions of this clause 11 and otherwise do nothing to hinder or prevent the Expert from reaching their determination.
11.4 The Expert may, in their reasonable discretion, determine any other further procedures to conduct the determination as the Expert considers just or appropriate.
11.5 Each party shall bear its own costs in relation to the reference to the Expert.
11.6 If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by this clause 11, then the Company may discharge the Expert and appoint a replacement Expert with the required expertise; and this clause 11 shall apply to the new Expert.
11.7 All matters concerning the process and result of the Expert’s determination shall be kept confidential among the parties and the Expert.
11.8 The Expert shall have no liability to the parties for any act or omission in relation to this appointment, save in the case of bad faith.
- TERMINATION AND ITS EFFECT
12.1 Without affecting any other right or remedy available to it if clause 18.1 applies or if the Customer becomes (or the Company reasonably believes that the Customer is about to become) subject to any clause 12.2 event and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Company, the Company may without liability cancel or suspend all further deliveries under the Contract and/or under any other contract between the parties, Terminate without notice, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
12.2 Events relevant to clause 12.1 are the Customer: (a) stopping carrying on a significant part of its business, or indicates in any way that it intends to do so; (b) being unable to pay its debts either within the S123 IA06 meaning;(c) becoming subject to a moratorium under Part A1 IA06; (d) becoming subject to a company voluntary arrangement under IA06; (d) becoming subject to a Part 26A CA06 restructuring plan; (e) becoming subject to a Part 26 CA06 scheme of arrangement; (f) having a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; (g) having a resolution passed for winding up; (h) having a petition presented to any court for its winding up or an application is made for an administration order, or a winding-up or administration order is made against it; (i) being subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced; (j) having a freezing order made against it; (k) being subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; (k) being subject to any events or circumstances analogous to those in (a) – (j) above; (l) not paying any undisputed amount due on the due date for payment and remains in default not less than five Business Days after being notified in writing to make such payment; (m) committing a material and irremediable breach of the Contract, or (if remediable) does not remedy that breach within ten Business Days after notification in writing to do so; and/or (n) repeatedly breaching any of these Terms or the Contract in such manner to reasonably justify the Company’s opinion that its conduct is inconsistent with it having the intention or ability to give effect to the Terms.
12.3 Termination shall not affect any of the parties’ rights and remedies that have accrued as at Termination. Clauses which expressly or by implication survive Termination shall continue in full force and effect.
12.4 On Termination or expiry of this Contract: (a) the Customer must immediately pay to the Company all the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt; (b) the Customer shall pay for or at its option return all Goods not fully paid for. If the Customer does not do so, then the Company may enter the Customer’s premises and take possession of such Goods; until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose; (c) the parties’ accrued rights, remedies, obligations and liabilities 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 expressly or impliedly having effect after Termination or expiry shall continue in full force and effect.
- LIMITATION OF LIABILITY
13.1 This clause 13 (which shall survive Termination) sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer for: (a) any breach of the Contract, however arising; (b) any Customer Use or resale of the Goods, or of any product incorporating any of the Goods; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract. Nothing in these Terms shall limit or exclude the Company’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; (iii) breach of terms implied by section 12 of the Sale of Goods Act 1979; (iv) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
13.2 Subject to clause 13.1 the Company shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for loss of profit, loss of business, loss or corruption of data, information or software, loss of business opportunity, loss of anticipated saving; loss of goodwill, or special, indirect or consequential damage. Subject to clauses 13.1 and 13.2, the Company’s total liability arising under or in connection with this Contract in respect of all losses (whether in contract, tort (including negligence), restitution or from breach of statutory duty, misrepresentation or otherwise) shall in all circumstances be limited to the Goods’ cost.
All IPR in or arising out of or in connection with the Goods shall be owned by the Company. The Customer acknowledges that, in respect of any third party IPR, the Customer’s use of any such IPR is conditional on the Company obtaining a written licence from the relevant licensor on such terms as will entitle the Company to license such rights to the Customer.
The Customer, its employees, agents or subcontractors 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 Customer its employees, agents or subcontractors by the Company, its employees, agents or subcontractors, and any other confidential information concerning the Company’s business or its products which the Customer may obtain. The Customer 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 Customer’s obligations under the Contract, and shall procure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer. This clause 15 shall survive Termination.
16.1 In this clause 16 (which shall survive Termination), a reference to the Company shall include the Company’s subsidiaries, and the provisions of this clause shall be for the benefit of the Company and each such subsidiary, and shall be enforceable by each such subsidiary, in addition to the Company. The Customer shall indemnify the Company and hold the Company harmless against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with: (a) the Customer’s breach or negligent performance or non-performance of its obligations under the Contract; (b) the Company enforcing these Terms and the Contract; (c) the Customer’s not complying in full with the Manufacturers Warranties; and (d) the Customer’s delay or not complying with clause 9.
16.2 If a payment due from the Customer under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Customer must pay the Company such amounts as shall procure that the Company’s net receipt, after tax, in respect of the payment is the same as it would have been if the payment were not subject to tax.
- FORCE MAJEURE
17.1 Force Majeure Event means any circumstance not in a party’s reasonable control including: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination; sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition or not granting a necessary licence or consent; collapse of buildings, third party default, fire, explosion or accident; labour or trade dispute, strikes, industrial action or lockout; non-performance by suppliers or subcontractors; and/or interruption or failure of utility service.
17.2 Provided it has complied with clause 17.3, a party prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party) shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly. The corresponding obligations of the other party will be suspended, and it’s time for performance of such obligations extended, to the same extent as those of the Affected Party.
17.3 The Affected Party must: (a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than five Business Days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and (b) use reasonable endeavours to mitigate the effect of the Force Majeure Event on performing its obligations. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performing its obligations for a continuous period of more than 20 Business Days, the Company may terminate the Contract by giving five Business Days written notice to the Customer.
- ANTI-BRIBERY AND ANTI SLAVERY
18.1 For the purposes of this clause 18.1 adequate procedures, bribe, and associated with shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it. Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to procure that: all its personnel, all others associated with it; and all its subcontractors; involved in performing the Contract so comply. Without limitation to this clause, neither party shall make or receive any bribe or other improper payment or allow any such to be made or received on its behalf, in the UK or elsewhere, and shall implement and maintain adequate procedures to procure that such bribes or payments are not made or received directly or indirectly on its behalf. The Customer shall immediately notify the Company as soon as it becomes aware of a breach or possible breach by the Customer of any of the requirements in this clause 18, and
18.2 The Company shall comply with the Modern Slavery Act 2015 (MSA) and its Slavery Policy (Policy). The Customer undertakes, warrants and represents that: (a) neither the Customer nor any of its officers, employees, agents or subcontractors has: (i) committed an offence under the MSA (an MSA Offence); or (ii) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the MSA; or (iii) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the MSA; (b) it shall comply with the MSA and the Policy; and it has implemented due diligence procedures to procure compliance with the MSA and the Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the Company on request at any time. The Customer shall notify the Company immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under this clause 18.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
18.3 Any Customer breach of this clause 18 shall be deemed a material and irremediable breach of the Contract entitling the Company to immediately terminate the Contract by notice pursuant to clause 12.1.
- PERSONAL DATA PROCESSING
The parties agree that the Customer is a Controller and that the Company is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall procure that all instructions the Company gives it in respect of Protected Data (including these Terms) shall at all times comply with Data Protection Laws. The Company shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and these Terms. This clause 19 shall survive Termination.
20.1 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the Company’s prior written consent.
20.2 Notices: Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address above; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; 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 or e-mail, the next Business Day after transmission. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
20.3 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If that modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to, or deletion of, a provision or part-provision under this clause 20.3 shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend that provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.4 A waiver of any right or remedy under the Contract is ineffective unless given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
20.5 Unless expressly stated otherwise, a person who is not a party to the Contract shall not have any rights under or in connection with it.
20.6 Except as set out in these Terms, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by a Company director.
20.7 The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
20.8 The Customer recognises that any breach or threatened breach of the Contract may cause the Company irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Company, the Customer acknowledges and agrees that the Company is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
20.9 The rights and remedies provided in the Contract for the Company only are cumulative and not exclusive of any rights and remedies provided by law.
20.10 Multi-tiered dispute resolution procedure. If a dispute arises out of or in connection with this agreement or its performance, validity or enforceability (Dispute) then subject to clause 6.4 and otherwise as except as expressly provided in these Terms, the parties shall follow the following procedures: (a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents, and on service of the Dispute Notice, the Company and the Customer shall attempt in good faith to resolve the Dispute; and (b) if the Company and the Customer are for any reason unable to resolve the Dispute within 20 Business Days of service of the Dispute Notice, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 10 Business Days’ service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 10 Business Days after the date of the ADR notice. No party may commence any court proceedings in relation to the whole or part of the Dispute until 10 Business Days after service of the ADR notice, provided that the right to issue proceedings is not prejudiced by a delay. If the Dispute is not resolved within 10 Business Days after service of the ADR notice or either party fails to participate or ceases to participate in the mediation before the expiry of that 10 Business Day period, the Dispute shall be finally resolved by the courts.
20.11 The 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.