Eden UK Terms and Conditions for the Supply of Goods and/or Services
The following definitions and rules of interpretation apply in these Conditions.
the Supplier’s quotation in respect of the supply of Goods and/or Services not set out in the Supplier’s Catalogue and based on the bespoke requirements of the Customer, setting out, where applicable, details of the Goods, Deliverables and/or Services, the Goods Specification and/or Service Specification and any variations to such specifications, and the Prices;
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
the charges for the Services calculated in accordance with Condition 9.3, as those charges may be varied from time to time in accordance with Condition 9.4;
has the meaning given in Condition 4.2;
the date on which a Contract for the supply of Goods and/or Services by the Supplier to the Customer on these Conditions is formed in accordance with Condition 2.2 or 2.4;
these terms and conditions as amended from time to time in accordance with Condition 16.10;
has the meaning given in Condition 11.3;
the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions;
shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly;
the person or firm who purchases the Goods and/or Services from the Supplier;
the deliverables set out in the Order or Bespoke Quotation (as applicable) produced by the Supplier for the Customer;
when delivery of the Goods occurs in accordance with Condition 4.3;
has the meaning given in Condition 4.2;
has the meaning given in Condition 9.2;
Force Majeure Event
any event or circumstance which prevents or delays a party from performing any of its obligations under the Contract, provided always that: (i) the relevant event or circumstance is beyond the reasonable control of the party claiming relief; (ii) the occurrence of the relevant event or circumstance could not have been reasonably foreseen by the party claiming relief at the time of execution of the Contract and (iii) the effects of the relevant event or circumstance could not reasonably have been avoided or overcome by the party claiming relief;
the goods (or any part of them) set out in the Order or the Bespoke Quotation (as applicable);
the specification for the Goods, including any relevant plans or drawings, as set out in the Supplier Catalogue (as may be varied by written agreement in an Order or Bespoke Quotation) and/or in a Bespoke Quotation;
Intellectual Property Rights
patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in the Contract and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence;
the Customer’s order for the supply of Goods and/or Services as set out in the Supplier Catalogue;
the Supplier’s written acceptance of the Order;
the prices for the Goods set out in the Supplier’s price list in force on the date on which the Order is received by the Supplier, or as set out in a Bespoke Quotation, as those prices may be varied from time to time in accordance with Condition 9.4;
the Customer’s purchase order for the purchase of Goods and/or Services provided by the Customer to the Supplier in response to a Bespoke Quotation;
the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Order or Bespoke Quotation (as applicable);
the description or specification for the Services, as set out in the Supplier Catalogue and/or in
a Bespoke Quotation;
Eden a trading division of The Marmon Group Limited registered in England with company number 01376182;
the Supplier’s catalogue setting out the standard specification of the Goods and/or Services as may be amended from time to time;
has the meaning given in Condition 8.1.9;
has the meaning given in Condition 5.1.
(a) All headings are for ease of reference only and will not affect the construction or interpretation of these Conditions.
(b) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
© A reference to a statute or statutory provision is a reference to it as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed without limitation and accordingly shall not limit the sense of the words, description, definition, phrase or term preceding those terms and the ejusdem generis rule will not apply.
(e) A reference to writing or written includes email but not other methods of electronic messaging.
2. BASIS OF CONTRACT
2.1. The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier as set out in the Order in accordance with these Conditions.
2.2. A Contract for the supply of Goods and/or Services by the Supplier to the Customer on these Conditions will be formed when the Supplier accepts the Order by issuing an Order Acknowledgement to the Customer. For the avoidance of doubt, the Supplier is under no obligation to accept the Order.
2.3. The Bespoke Quotation constitutes an offer by the Supplier to supply Goods and/or Services as set out in the Bespoke Quotation in accordance with these Conditions. Any Bespoke Quotation is only valid for a period of 20 Business Days from and including its date of issue, or such other period as notified by the Supplier in writing.
2.4. A Contract for the supply of Goods and/or Services by the Supplier to the Customer on these Conditions will be formed when the Customer accepts the Bespoke Quotation by issuing a Purchase Order to the Supplier.
2.5. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s brochures and other sales literature, other than the Supplier Catalogue, are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6. These Conditions are the only terms and conditions on which the Supplier will supply goods and services to the Customer and will apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate under any purchase order, confirmation of order or similar document (whether or not such document is referred to in the Contract), or which are implied by trade, custom, practice or course of dealing.
2.7. Delivery or commencement of the performance of the Services will be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
2.8. Any quotation given by the Supplier, other than a Bespoke Quotation, shall constitute an invitation to treat and not an offer, and is only valid for a period of 20 Business Days from and including its date of issue, or such other period as notified by the Supplier in writing.
2.9. The Supplier will be entitled, at its discretion, to deliver Goods by separate instalments. The Supplier will be entitled to invoice the Prices for each instalment separately in accordance with Condition 9.5. Each instalment will be deemed to be a separate contract and no cancellation or termination of any one contract relating to an instalment will give the Customer the right to cancel or terminate any other contract.
3.1. The Goods are as described in the Supplier Catalogue, subject to any modifications set out in the applicable Goods Specification.
3.2. To the extent that the Goods are to be manufactured in accordance with a specification required by the Customer and then agreed by the parties in a Goods Specification, the Customer shall indemnify the Supplier against the Recoverable Liabilities, in each case arising out of or in connection with:
3.2.1. any claim or proceedings made, brought or threatened against the Supplier by any person for actual or alleged infringement of a third party’s Intellectual Property Rights; and
3.2.2. any breach of applicable law, including health and safety law,
in each case arising out of or in connection with the Goods’ compliance with the Goods Specification. This Condition 3.2 shall survive termination of the Contract.
3.3. The Supplier reserves the right to:
3.3.1. amend the design, finish and/or packaging of the Goods and/or the Goods Specification; and/or
3.3.2. substitute any materials or parts which are used in the Goods and which are unavailable for any reason with alternative materials or parts if:
22.214.171.124. this does not materially affect their quality or performance; or
126.96.36.199. this is necessary to comply with any health and safety or other statutory or regulatory requirements,
and the Supplier shall notify the Customer in any such event.
3.4. The Contract is not a sale by sample.
4. DELIVERY OF GOODS
4.1. The Supplier shall ensure that:
4.1.1. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any); and
4.1.2. it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2. Unless otherwise agreed by the parties in writing, the Supplier shall deliver the Goods to the Customer’s UK mainland head office or such other location as the parties may agree in writing (Delivery Location) and the Customer will be responsible for unloading the Goods from the delivery vehicle. If the parties agree that the Customer will collect the Goods, the Customer will collect the Goods from the Supplier’s premises or such other location as the parties may agree in writing (Collection Location) and the Customer will be responsible for loading the Goods onto the delivery vehicle. The Supplier will give the Customer reasonable advance notice of the date on which the Goods will be delivered or ready for collection (as applicable) or otherwise within such timescales as agreed by the parties in writing.
4.3. Delivery of the Goods (Delivery) shall be deemed to occur:
4.3.1. when they have been off-loaded at the Delivery Location; or
4.3.2. if the Supplier installs the Goods, on completion of the applicable installation services; or
4.3.3. in the case of Customer collection, when the Customer has taken receipt of the Goods at the Collection Location.
4.4. Any dates quoted for delivery or collection of the Goods are approximate only, and the time for delivery of the Goods is not of the essence of the Contract.
4.5. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6. If the Supplier fails to deliver the Goods where required to do so, its Liability shall, subject to Condition 12.1, be limited to the Price of such Goods. Subject to Condition 12.1, the Supplier shall have no Liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.7. If Delivery occurs but the Customer fails to collect or accept delivery of the Goods (as applicable), then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods, the Supplier will be entitled to:
4.7.1. store or arrange for storage of the Goods until the Customer collects or accepts delivery of them (as applicable) or they are disposed of under Condition 4.7.2 (as applicable) and to take such action as the Supplier considers necessary to attempt to re-deliver the Goods to the Delivery Location;
4.7.2. treat the Contract as repudiated by the Customer and dispose of the Goods in any way the Supplier sees fit, including by sale to another person. If the Supplier sells any of the Goods under this Condition 4.7.2 at a price which is less than the relevant Price plus any relevant packaging, insurance, transport and delivery costs, the Supplier will be entitled to charge the Customer for the shortfall; and
4.7.3. charge the Customer for all costs and expenses (including insurance) which the Supplier incurs under Conditions 4.7.1 and 4.7.2.
4.8. If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered by the Customer, the Customer may not reject them but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
5.1. The Supplier warrants that during the period starting on Delivery and ending on expiry of a period of 12 months from and including the date of Delivery (Warranty Period), the Goods shall:
5.1.1. subject to Condition 3.3, conform in all material respects with their description and any applicable Goods Specification;
5.1.2. be free from material defects in design, material or workmanship; and
5.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2. Subject to Condition 5.3, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
5.2.1. the Customer gives notice in writing during the Warranty Period as soon as reasonably practicable and in any case within no later than 7 days of becoming aware that the relevant Goods do not comply with any of the warranties set out in Condition 5.1;
5.2.2. the Supplier is given a reasonable opportunity to examine such Goods;
5.2.3. the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost; and
5.2.4. the Customer provides the Supplier with all information and assistance which the Supplier may reasonably require to investigate the alleged breach of warranty,
and, subject to Condition 12.1, this shall be the Supplier’s only Liability for breach of any of the warranties at Condition 5.1.
5.3. Subject to Condition 12.1, the Supplier shall not be liable for the Goods’ failure to comply with any of the warranties in Condition 5.1 if:
5.3.1. the Customer makes any further use of such Goods after becoming aware of the relevant breach;
5.3.2. the Customer does not comply with its obligations at Condition 5.2 in respect of the breach;
5.3.3. 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 Goods or (if there are none) good trade practice;
5.3.4. the defect arises as a result of the Supplier following any drawing, design or a specification required by the Customer;
5.3.5. the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.6. the defect arises as result of damage in transit after Delivery;
5.3.7. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.3.8. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4. The terms of this Condition 5 shall apply to any repaired or replacement Goods supplied by the Supplier.
5.5. Subject to Condition 12.1, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Contract.
6. TITLE AND RISK
6.1. The risk of damage to or loss of the Goods shall pass to the Customer on Delivery.
6.2. Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1. the date on which the Supplier has received in full in cleared funds:
188.8.131.52. all sums due to the Supplier in respect of the Goods; and
184.108.40.206. all other sums which are or which become due to the Supplier from the Customer on any account whatsoever; and
6.2.2. the date on which the Customer resells the Goods, in which case title to the Goods shall pass to the Customer in accordance with Condition 6.4.
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1. hold the Goods on a fiduciary basis as the Supplier’s bailee;
6.3.2. store the Goods (at no cost to the Supplier) separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4. maintain the Goods in satisfactory condition;
6.3.5. keep the Goods insured against all risks for their full price on the Supplier’s behalf from the date of Delivery, whenever requested by the Supplier produce a copy of the policy of insurance in respect of the Goods to the Supplier, do nothing and not omit to do anything which in consequence permits any insurer to refuse to indemnify the Customer in full in accordance with the terms of any insurance policy maintained in respect of the Goods in respect of any claim made under any such insurance policy and ensure that any insurance proceeds received by the Customer under the relevant policy are applied to repairing damaged Goods or, in the event that they are not so applied, hold such proceeds on trust for the Supplier;
6.3.6. notify the Supplier immediately if it becomes subject to any of the events listed in Condition 13.1.2 to Condition 13.1.4; and
6.3.7. give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4. Subject to Condition 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1. it does so as principal and not as the Supplier’s agent; and
6.4.2. title to the Goods shall pass from the Supplier to the Customer immediately prior to the Customer entering into a binding contract for the sale of those Goods.
6.5. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 13.1.2 to Condition 13.1.4, then, without limiting any other right or remedy the Supplier may have:
6.5.1. the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2. the Supplier may at any time:
220.127.116.11. require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
18.104.22.168. 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.
6.6. The Supplier may, by giving written notice to the Customer, pass title to the Goods (or any of them) to the Customer at any time before such title would otherwise have passed to the Customer.
7. SUPPLY OF SERVICES
7.1. The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2. The Supplier shall use all reasonable endeavours to meet any performance dates for the Services but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3. The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER’S OBLIGATIONS
8.1. The Customer shall:
8.1.1. ensure that the terms of the Order, any information it provides in and any requirements set out in the Service Specification and the Goods Specification are complete and accurate;
8.1.2. co-operate with the Supplier in all matters relating to the Services;
8.1.3. provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.4. notify the Supplier within 24 hours of any discussions, negotiations or proposals with any of the Customer’s creditors in relation to a debt or debts owed to any of them or any discussions relating to the Customer’s insolvency;
8.1.5. provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.6. make all necessary preparations at its premises to enable the Supplier to undertake the Services;
8.1.7. obtain and maintain all necessary licences, permissions and consents which may be required for receipt of the Services before the date on which the Services are to start;
8.1.8. comply with all applicable laws, including health and safety laws;
8.1.9. keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
8.1.10. comply with the Supplier’s instructions in connection with any product recall initiated by the Supplier involving the Goods (or any of them); and
8.1.11. comply with any additional obligations as set out in the Service Specification and/or the Goods Specification.
8.2. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.2.1. without limiting or affecting any other right or remedy available to it, the Supplier shall 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
8.2.2. subject to Condition 12.1, 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 a result of the Customer Default; and
8.2.3. 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.
9. CHARGES AND PAYMENT
9.1. The Customer will pay the Prices and Charges to the Supplier in accordance with this Condition 9.
9.2. Unless otherwise agreed in writing by the parties, the Prices and Charges shall be exclusive of all costs and charges of packaging, insurance, transport and delivery of the Goods and those travel, accommodation and subsistence expenses reasonably and properly incurred by the Supplier from time to time in performing the Services (Expenses), which shall be invoiced to the Customer in addition to the Prices and Charges.
9.3. The Charges shall be calculated as follows:
9.3.1. on a time and materials basis in accordance with the Supplier’s daily fee rates as notified to the Customer;
9.3.2. the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days, unless otherwise agreed by the parties in writing; and
9.3.3. the Supplier shall be entitled to charge the Customer for any Expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
9.4. The Supplier reserves the right to:
9.4.1. increase the Charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index;
9.4.2. increase the Prices for the Goods, by giving notice to the Customer at any time before Delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
22.214.171.124. 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);
126.96.36.199. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
188.8.131.52. any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.5. The Supplier shall be entitled to invoice the Customer for the Prices for the Goods and any packaging, insurance, transport and delivery costs payable by the Customer in addition to the Prices on or at any time after Delivery, and monthly in arrears for the Charges and any Expenses payable by the Customer in addition to the Charges.
9.6. The Customer shall pay each invoice submitted by the Supplier:
9.6.1. within 30 days of the date of the invoice or as otherwise agreed by the parties in writing; and
9.6.2. in full and in cleared funds to the following bank account or such other bank account as nominated in writing by the Supplier from time to time:
9.7. Time for payment shall be of the essence of the Contract.
9.8. 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 Goods at the same time as payment is due for the supply of the Services or Goods.
9.9. If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under Conditions 8.2.1 and/or 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Condition 9.9 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.10. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. INTELLECTUAL PROPERTY RIGHTS
10.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2. At the Supplier’s sole discretion, the Supplier will grant to the Customer, or will procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence for the lifetime of the relevant Goods to copy the Deliverables (excluding materials provided by the Customer) for the sole purpose of receiving and using the Services and the Deliverables in its business.
10.3. The Customer shall not sub-license, assign or otherwise transfer the rights granted by Condition 10.2.
10.4. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to use, copy and modify any materials provided by the Customer to the Supplier for the term of the Contract to the extent required in order to provide the Services to the Customer.
10.5. Otherwise than as set out in this Condition 10, nothing in these Conditions will operate to transfer or grant to the Customer any licence or other right to use any of the Supplier’s Intellectual Property Rights
11.1.1. shall not at any time during the Contract, and for a period of five years after termination of the Contract disclose to any person any Confidential Information; and
11.1.2. shall at all times keep the other party’s Confidential Information secret, safe and secure,
except as permitted by Condition 11.2.
11.2. Each party may disclose the other party’s Confidential Information:
11.2.1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this Condition 11; and
11.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3. For the purposes of this Condition 11, “Confidential Information” means any information that relates to a party and which is disclosed to the other party in connection with the Contract and any trade secret where the trade secret holder is the party disclosing the trade secret, but excluding information that:
11.3.1. is at the relevant time in the public domain (other than by virtue of a breach of this Condition 11);
11.3.2. was received by the other party from a third party who did not acquire it in confidence; or
11.3.3. is developed by the other party without any breach of the Contract.
11.4. Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
12. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION.
12.1. Nothing in these Conditions shall limit or exclude any Liability of a party:
12.1.1. that cannot be excluded or restricted in the Contract in respect of death or personal injury resulting from negligence by operation of Section 2(1) Unfair Contract Terms Act 1977;
12.1.2. for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable;
12.1.3. for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
12.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
12.1.5. for defective products under section 2(3) of the Consumer Protection Act 1987; or
12.1.6. for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
12.2. Subject to Condition 12.1, the Supplier shall not be Liable to the Customer for:
12.2.1. loss of profits (whether direct, indirect or consequential);
12.2.2. loss of sales or business (in each case whether direct, indirect or consequential);
12.2.3. loss of agreements or contracts (in each case whether direct, indirect or consequential);
12.2.4. loss of anticipated savings (whether direct, indirect or consequential);
12.2.5. loss of use or corruption of software, data or information (in each case whether direct, indirect or consequential);
12.2.6. loss of or damage to goodwill (in each case whether direct, indirect or consequential); and
12.2.7. any indirect or consequential loss.
12.3. Subject to Condition 12.1, the Supplier’s total Liability to the Customer shall be limited to the total Charges and Prices paid under the Contract.
12.4. Any of the Supplier’s Liability which falls within Condition 12.1 will not be taken into account in assessing whether the financial limit in Condition 12.3 has been reached.
12.5. Nothing in this Condition 12 will prevent or restrict the right of a party to seek injunctive relief or specific performance or other discretionary remedies of the court.
12.6. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.7. This Condition 12 shall survive termination of the Contract.
13.1. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.1.1. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
13.1.2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
13.1.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.1.4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
This Condition 13.1 will not apply to any failure by the Customer to make any payment due to the Supplier under the Contract on or before the due date. Condition 13.2 will apply instead to any such failure.
13.2. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
13.2.1. the Customer fails to pay any amount due under the Contract on or before the due date for payment; or
13.2.2. there is a change of Control of the Customer.
13.3. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in Conditions 13.1.2 to 13.1.4 inclusive, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
13.4. The Customer will notify the Supplier immediately if the Customer becomes subject to any event or circumstance set out in Conditions 13.1.2 to 13.1.4 inclusive.
14. CONSEQUENCES OF TERMINATION
14.1. On termination of the Contract:
14.1.1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
14.1.2. the Customer shall return all of the Supplier Materials and any Deliverables or Goods 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.
14.2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
14.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
14.4. Within 10 days after the date of expiry or termination of the Contract each party will, subject to the exception set out in Condition 14.5:
14.4.1. if requested to do so, return to the other party all of the other party’s Confidential Information (including all copies and extracts) in its possession or control; and
14.4.2. cease to use the other party’s Confidential Information.
14.5. Each party may retain any of the other party’s Confidential Information which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting or taxation purposes. The provisions of Condition 11 will continue to apply to retained Confidential Information.
15. FORCE MAJEURE
15.1. The Supplier shall not be in breach of the Contract or otherwise liable to the Customer for any delay in performing or failure to perform any of its obligations under the Contract to the extent that such delay or failure result is due to a Force Majeure Event.
15.2. If a Force Majeure Event continues for a period of more than 30 days, either party will be entitled to terminate the Contract immediately by giving written notice to that effect to the other party.
16.1. Assignment and other dealings.
16.1.1. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
16.1.2. The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
16.2.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
16.2.2. Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 09.00 on the second Business Day after posting or at the time recorded by the delivery service.
16.2.3. This Condition 16.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
16.3. Severance. 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 such 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 Condition shall not affect the validity and enforceability of the rest of the Contract.
16.4. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5. No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6. Independent contractor. Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
16.7. Cumulative remedies. The Supplier’s rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.
16.8. Entire agreement.
16.8.1. The 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.
16.8.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
16.8.3. Nothing in this Condition 16.8 shall limit or exclude any liability for fraud or fraudulent misrepresentation.
16.9. Third parties rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
16.10. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
16.11. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
16.12. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.