SURE RETAIL EQUIPMENT LIMITED STANDARD TERMS AND CONDITIONS OF SALE (GOODS AND SERVICES)
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 14.
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Bespoke Products: Products:
(a) which are not featured in the Supplier’s standard price list as appearing on its website from time to time; or
(b) which are produced according to Customer specification; or
(c) sprayed in a colour other than the standard Jura
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Change in Specification: means any alteration by the Customer. Alterations may include changes to size, colour, style, design or configuration.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.13.
Contract: the contract between the Supplier and the Customer for the supply of Products and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Products and/or Services from the Supplier.
Customer Product(s) Specification: a Product specification as instructed/specified by the Customer for Bespoke Products.
Delivery Location: has the meaning set out in clause 4.1.
Force Majeure Event: has the meaning given to it in clause 17.1(a).
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer's order for the supply of Products and/or Services, as set out in the Supplier’s order form.
Products: the products (or any part of them) set out in the Order.
Product(s) Specification: the products’ specification as set out in the Order, whether or not for Bespoke Products
Services: the provision of services in connection with the supply of Products supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the provision of Services in connection with the Products provided in writing by the Supplier to the Customer.
Supplier: Sure Retail Equipment Limited of 14 Orion Way, Crewe, Cheshire CW1 6NG registered in England and Wales with company number 04923018.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, or a corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails unless otherwise specified in these Conditions.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Products and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order (an Order acknowledgment) at which point and on which date the Contract shall come into existence (Commencement Date). The Supplier’s Order acknowledgement is the Customer’s sole point of reference for each Order accepted and as such it is the Customer’s responsibility to check the Order acknowledgement meticulously to ensure that all instructions have been clearly understood.
2.3 Once an Order has been accepted it cannot be cancelled save at the sole discretion of the Supplier and subject to the Supplier being indemnified in full against all charges or expenses incurred before receipt of the cancellation notice in relation to the Order and any losses including loss of profit which may be occasioned by such cancellation.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Products or illustrations or descriptions of the Services contained in the Supplier's price list are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions 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.
2.7 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 30 days from its date of issue. All quotations are made subject to these Conditions.
2.8 All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.
3. PRODUCTS
3.1 The Products are described in the Supplier's price list or by any applicable Products Specification.
3.2 Where Products are manufactured in accordance with a Customer Products Specification, the Customer shall indemnify the Supplier 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 professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Customer Products Specification. This clause 3.2shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend a Product Specification if required by any applicable statutory or regulatory requirements and will notify the Customer if any such amendments are proposed.
3.4 Except where the Supplier and the Customer have otherwise expressly agreed in writing, the sale shall not be by sample and samples submitted and descriptions, illustrations or forecasts in trade literature catalogues or brochures or otherwise howsoever shall be taken as showing type, class or general character only and not as importing terms or warranties as to substance, performance, colour, quality or dimension and a failure to conform with such samples, descriptions or illustrations shall not constitute any breach of contract on the part of the Supplier.
3.5 The Product colour chosen by the Customer must be stated in the Order. The Customer shall not be entitled to reject Products for any reason relating to the colour of the Products where the Products supplied conform with the colour chosen by the Customer and specified in the Order and the Customer will remain liable for the cost of the Product once the order has been confirmed.
4. DELIVERY OF PRODUCTS
4.1 The Supplier shall notify the Customer when the Products are ready either for collection or delivery to the location set out in the Order or such other location as the parties may agree (Delivery Location).
4.2 Delivery of the Products shall be completed when the Products have been collected by the Customer from the Supplier or have arrived at the Delivery Location (Delivery).
4.3 Any dates quoted for Delivery of the Products are approximate only and time of Delivery is not of the essence. The Supplier shall not be liable for any delay in Delivery of the Products which is caused by a Force Majeure Event or by the Customer's failure to collect the Products once notified in accordance with clause 4.1 or to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the Delivery of the Products.
4.4 If the Supplier (or its subcontractors, agents or other third party suppliers who carry out Delivery on behalf of the Supplier) fails to deliver the Products its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event, the Customer's failure to provide the Supplier with adequate Delivery instructions for the Products or any relevant instruction related to the supply of the Products.
4.5 Where Delivery is made by a subcontractor, agent or third party supplier on behalf of the Supplier, the Supplier shall not be liable for any damage or losses suffered by the Customer as a result of any act or omission of that subcontractor, agent or third party supplier save to the extent the Supplier’s liability cannot be limited under English law.
4.6 If the Customer fails to collect or take delivery of the Products:
(a) Delivery of the Products shall be deemed to have been completed when the Products arrived at the Delivery Location or three Business Days after notification that the Products are ready for collection; and
(b) the Supplier shall store the Products until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.7 If 30 Business Days after the Supplier notified the Customer that the Products were ready for Delivery the Customer has not accepted or taken Delivery of them, the Supplier may resell or otherwise dispose of part or all of the Products without prejudice to the Supplier’s right to receive payment in full for the Products from the Customer.
4.8 The Customer shall not be entitled to reject the Products if the Supplier delivers up to 5% more or less than the quantity of Products ordered where the quantity delivered is that number of the Supplier’s standard units of supply for those Products which is closest to the quantity ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer within 2 Business Days of receipt of the Products that the wrong quantity of Products was delivered.
4.9 The Supplier may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 Failure by the Customer to pay for any instalment or delivery when payment is due, in accordance with clause 11.5, shall entitle the Supplier to withhold further deliveries.
4.11 If the Customer fails to accept delivery of any Products when tendered by the Supplier or in the event of any delivery being delayed at the Customer’s request or in the event of the Customer failing to make any payment for any Products when it is due the Customer shall be liable to the Supplier for any additional or excess handling, storage or other charges whatsoever incurred by the Supplier in relation to the Products or any other Product delivery of which the Supplier is then entitled to withhold.
4.12 Unless otherwise expressly agreed in writing, any completion or Delivery date given by the Supplier is an estimate only made under conditions from time to time, shall not be or become a term of the Contract or any contract collateral thereto, is given without any legal commitment and the Supplier shall not be liable for any warranty or representation which may have been made in the course of negotiation in relation to a completion or delivery date and no times quoted, specified or agreed for delivery or for performance of any other obligations of the Supplier shall be of the essence of the Contract.
5. RETURN OF PRODUCTS
5.1 The Supplier will not normally allow the Customer to return any Products which are surplus to the Customer’s requirements and will never accept the return of Bespoke Products. The Supplier may, at its sole discretion, agree to accept the return of Products provided always such Products are fit for resale. The Customer should be aware that the provisions of this clause 5.1 include large volume orders whether or not Bespoke Products. Subject to the foregoing, and strictly at the Supplier’s discretion, confirmed in writing, the Supplier will only permit the Customer to return Products if they are in re-saleable pack quantities and still in their original packaging .
5.2 If the Supplier allows the Customer to return any Products in accordance with clause 5.1, the Supplier will issue an appropriate credit note upon the safe receipt of those Products.
5.3 If the Supplier allows the Customer to return any Products, the Customer shall pay to the Supplier a handling charge of 20% of the net invoice price at which the Products were purchased by the Customer to cover the costs of processing the return and the Supplier will, at its sole discretion, invoice the Customer for the handling charge or debit the Customer’s account.
5.4 If the Customer wishes to return any Products, the customer must first contact the Supplier’s customer service department on 01270 849284, giving the Customer’s reason for the proposed return obtaining a returns authorisation number (RAN). Damages, returns or omissions must be reported to the Supplier within 24 hours of delivery of the Products. Claims for damages are subject to a minimum claim of £50 worth of Products. When a valid claim is made a £55 excess will be applied. Products sent back without a RAN will not be accepted and the Customer will remain liable for payment for the Products.
5.5 Products which the Supplier agrees in writing may be returned must be delivered to the Supplier within 5 Business Days of the Supplier’s written notification at the Customer’s own cost. Until the Products are returned, the Customer must keep the Products in its possession, take reasonable care of them (including ensuring that it follows any instructions or manuals given with the Products) and not use them before they are returned to the Supplier.
5.6 In the event that the Customer does not return any Products (including, but not limited to, where it has not paid for them), the Supplier may, at its option, collect the Products from the Customer at the Customer’s expense. The Supplier will attempt but shall not be required to notify the Customer if it intends to collect the Products in accordance with this clause 5.6.
5.7 All Products returned must be unused and in their original packaging and wrappers to prevent damage. Upon receipt returned Products will be inspected by the Supplier and only Products which meet the returns’ requirements will be accepted for a refund.
5.8 The Supplier shall pay to the Customer a reasonable charge for storing and returning any of the Products over-delivered or rejected.
5.9 Returns will be at the Customer’s risk until received by the Supplier.
5.10 The Customer must return the Products to the Supplier carriage paid.
6. QUALITY OF PRODUCTS
6.1 All Products which bear the brand “SurePlus” are supplied with a 12 month manufacturing warranty. The Supplier warrants that on delivery the Products shall:
(a) conform in all material respects with their description and any applicable Products Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Products Act 1979);
(d) be SurePlus branded products and supplied with 12 month manufacturing warranty;
6.2 Subject to clause 6.3, if:
(a) the Customer gives notice in writing within 5 Business Days of discovery that some or all of the Products do not comply with the warranty set out in clause 6.1;
(b) the Supplier is given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by the Supplier) returns such Products to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
6.3 The Supplier shall not be liable for the Products' failure to comply with the warranty in clause 6.1 if:
(a) the Customer makes any further use of such Products after discovering the fault or defect;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice;
(c) the defect arises as a result of a failure by any third party installer to follow the Supplier's oral or written instructions regarding installation, use or maintenance of the Products or (if there are none) good trade practice;
(d) the defect arises as a result of the Supplier following any drawing, design or Products Specification supplied by the Customer;
(e) the Customer alters or repairs such Products without the written consent of the Supplier;
(f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(g) the Products differ from the Products Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 6.1.
6.5 The terms of these Conditions shall apply to any repaired or replacement Products supplied by the Supplier under clause 6.2.
7. TITLE AND RISK
7.1 The risk in the Products shall pass to the Customer on completion of delivery in accordance with clause 4.
7.2 Title to the Products shall not pass to the Customer until the Supplier has received payment in full (in cleared funds) for:
(a) the Products; and
(b) any other Products that the Supplier has supplied to the Customer in respect of which payment has become due.
7.3 Until title to the Products has passed to the Customer, the Customer shall:
(a) hold the Products on a fiduciary basis as the Supplier's bailee;
(b) store the Products separately from all other Products held by the Customer so that they remain readily identifiable as the Supplier's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(l); and
(f) give the Supplier such information relating to the Products as the Supplier may require from time to time,
but the Customer may resell or use the Products in the ordinary course of its business but shall account to the Supplier for the proceeds of sale or otherwise of the Products whether tangible or intangible (including insurance proceeds) and shall keep all such proceeds separate from any moneys or property of the Customer and third parties.
7.4 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(l), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
8. SUPPLY OF SERVICES
8.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
8.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services and the Supplier shall notify the Customer in any such event.
8.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
9. THIRD PARTY INSTALLATION
Where the Products are provided by the Supplier but installed by a third party, the Supplier shall not be liable for any damage or losses suffered by the Customer as a result of any act or omission of that third party installer (including, but not limited to, in respect of failure to properly and correctly install the Products in accordance with the Supplier’s instructions or good industry practice or any alteration or modification to the Products).
10. CUSTOMER'S OBLIGATIONS
10.1 The Customer shall:
(a) ensure that the terms of the Order and (if submitted by the Customer) the Products Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and sub-contractors with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services and ensure that such information is accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services, including ensuring that the Customer’s premises comply with all health and safety regulations and ensuring that that the Customer’s premises do not contain the actual, alleged or threatened presence of asbestos;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) keep and maintain in good condition and in safe custody all the unfitted Products held at the Customer's premises at the Customer’s own risk, until fitted or returned to the Supplier and not dispose of or use the unfitted Products other than in accordance with the Supplier's written instructions or authorisation.
10.2 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 10.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
11. CHARGES AND PAYMENT
11.1 The price for Products shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of delivery. The price of the Products is exclusive of all costs and charges of packaging, insurance, transport of the Products, which shall be paid by the Customer when it pays for the Products.
11.2 The charges for Services shall be the price set out in the Order. If no price is quoted charges shall be made on a time and materials basis. The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by any sub-contractor whom the Supplier engages in connection with the Services, including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, in addition to materials and costs of third party services which are required by the Supplier for the performance of the Services.
11.3 The Supplier reserves the right to:
(a) increase its standard daily fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any 12-month period. The Supplier will give the Customer written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within 2 weeks of the date of the Supplier's notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 1 weeks' written notice to the Customer; and
(b) increase the price of the Products by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Products to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Products Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Products or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Products.
11.4 The Suppler shall invoice the Customer for Products on despatch of the Products unless the Supplier specifically requests payment in advance for Products and for Services when they send an Order acknowledgement to the Customer.
11.5 The Customer shall pay each invoice submitted by the Supplier:
(a) upon receipt of the invoice, unless the Supplier agrees credit terms; and,
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) time for payment shall be of the essence of the Contract.
11.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Products at the same time as payment is due for the supply of the Services or Products.
11.7 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on all unpaid invoices under the Late Payment of Commercial Debts (Interest) Act 1998 accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
11.8 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 shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11.9 The Customer shall indemnify the Supplier against all fees and disbursements (including reasonable legal costs) incurred by the Supplier in connection with the recovery of any payments due and outstanding from the Customer.
11.10 In the event that payment is made by credit card, the Supplier reserves the right to levy a charge of 2.20% of the full transaction value including VAT.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the Products and Services is owned by and belongs to the Supplier or third party and the Customer will not acquire any Intellectual Property Rights in either the Products or the Services.
12.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services and/or Products, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
13. CONFIDENTIALITY
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 13 shall survive termination of the Contract.
14. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
14.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Products and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Products Act 1979 (title and quiet possession)
14.2 Subject to clause 14.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall in no circumstances exceed the lesser of the Contract value or £500,000.
14.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.4 This clause 14 shall survive termination of the Contract.
15. TERMINATION
15.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1(b) to clause 15.1(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
15.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract: with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
15.3 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Products under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer fails to make pay any amount due under this Contract on the due date for payment; or
(b) the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
16. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Products which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract, which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17. GENERAL
17.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, pandemics or epidemics, 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, extreme weather or default of suppliers or subcontractors.
(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Products for more than 6 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
17.2 Assignment and subcontracting:
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.3 Set-off: the Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the Supplier has with the Customer.
17.4 Further assurance: the Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
17.5 Notices:
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally when left at such address or, if sent by prepaid 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, or if sent by fax on the next Business Day after transmission.
(c) This clause 17.5 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
17.6 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
17.7 Time: unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
17.8 Severance:
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17.9 Entire agreement
(a) The parties agree that the Contract and any documents entered into pursuant to it (including any order form) constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
(b) Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract[or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
(c) Nothing in these Conditions purports to limit or exclude any liability for fraud.
17.10 Conflicts within contract: if there is a conflict between the terms contained in the Conditions and the terms of the Order, the terms of the Conditions shall prevail to the extent of the conflict.
17.11 No partnership: nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between 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.
17.12 Third party rights: a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
17.13 Variation: except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.
17.14 Equitable relief: the Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
17.15 Governing law and jurisdiction: 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 to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
