The Customer’s attention is drawn in particular to the provisions of clause 12 (Limitation of Liability) and clause 13 (Indemnity).
Definitions: Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business. Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.4. Content: information, comments, reviews and other tests, photos, pictures and other images, films, movies, music and other audio files, software, applications or games, or any other content on the Supplier’s website. Contract: the contract between the Supplier and the Customer for the supply of Goods and / or Services in accordance with these Conditions. Customer: the person or firm who purchases the Goods and / or Services from the Supplier. Deliverables: the deliverables set out in the Order or agreed to be provided by the Supplier in writing (excluding the Supplier’s Equipment). Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Supplier. Force Majeure Event: an event or circumstance beyond a party’s reasonable control. Goods: the goods (or any part of them) set out in the Order. 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 (including know-how and trade secrets), 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. Order: the Customer’s order for the supply of Goods and / or Services, as set out in the Customer’s purchase order form, the Customer’s email, through the Supplier’s website, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be. Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification. Service Specification: the description or specification of the Services agreed in writing by the Supplier. Supplier: Flavour Warehouse Limited (registered in England and Wales with company number 08791964). Supplier’s Designs: any logos and graphics designed, owned or provided by the Supplier. Supplier’s Equipment: any equipment, tools, facilities or units including (but not limited to) merchandise stands, counter top display units, floor stand display units, provided by the Supplier to the Customer. Trade Marks: any trade mark registrations and / or applications of the Supplier from time to time. A non-exhaustive list of the Supplier’s trade marks is contained at https://www.flavourwarehouse.co.uk/trademarks, and the
Supplier reserves the right to update this list from time to time.
a reference to a statute or statutory provision is a reference to such statute or 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.
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.
a reference to writing or written includes fax and emails.
BASIS OF CONTRACT
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.
The Order constitutes an offer by the Customer to purchase Goods and / or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Goods Specification and / or Service Specification are complete and accurate.
The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and / or Services referred to in them. They shall not form part of the Contract nor have any contractual force.
A quotation for Goods and / or Services given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 10 Business Days from its date of issue.
All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
Clause 14 shall apply in circumstances where the Supplier provides any Supplier’s Equipment to the Customer.
To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, 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 reasonable 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 Supplier’s use of the Goods Specification, or in respect of the contents of any Goods Specification being incorrect. This clause 3.1 shall survive termination of the Contract.
THE CUSTOMER MUST ENSURE THAT ANY INFORMATION IT PROVIDES IN A GOODS SPECIFICATION IS COMPLETE AND
The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
The Customer should confirm the contents of any Goods Specification before an Order is accepted. If the Customer fails to do so, clause 3.1 shall apply notwithstanding.
Where the Goods are re-sold by the Customer, the Customer shall consult with the Supplier as to the prices to be charged in respect of the Goods and refrain from charging in excess of any maximum charges specified by the Supplier from time to time.
DELIVERY OF GOODS
The Supplier shall ensure that if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. 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.
The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree, or alternatively the Customer shall collect the Goods from the Supplier’s premises at Global Way, Darwen, Lancashire, BB3 0RW or such other location as may be advised by the Supplier prior to delivery (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
Delivery is completed on the completion of unloading or loading (as the case may be) of the Goods at the Delivery Location.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. 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 or any other instructions that are relevant to the supply of the Goods.
If the Customer fails to take or accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for
any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
If the Supplier delivers up to and including 15% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
The Customer must ensure that it inspects the Goods within 60 days of delivery in accordance with clause 5.2.
QUALITY OF GOODS
The Supplier warrants that on delivery the Goods shall:
conform in all material respects with their description and any applicable Goods Specification; and
be free from material defects in design, material and workmanship; and
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
be fit for any purpose held out by the Supplier.
Subject to clause 5.3, if:
the Customer gives notice in writing to the Supplier within 60 days of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
the Supplier is given a reasonable opportunity of examining such Goods; and
the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
the Customer alters or repairs such Goods without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
the Customer fails to give written notice to the Supplier in accordance with clause 5.2.1.
Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
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 Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
TITLE AND RISK
The risk in the Goods shall pass to the Customer on completion of delivery.
Title to the Goods shall not pass to the Customer until completion of delivery and the earlier of:
the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; or
the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
Until title to the Goods has passed to the Customer, the Customer shall:
store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
notify the Supplier immediately if it becomes subject to any of the events listed in clause 11.1; and
give the Supplier such information relating to the Goods as the Supplier may require from time to time.
Subject to clause 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:
it does so as principal and not as the Supplier’s agent; and
title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 11.1, then, without limiting any other right or remedy the Supplier may have:
the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
the Supplier may at any time:
require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; 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.
SUPPLY OF SERVICES
The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
THE CUSTOMER MUST ENSURE THAT ANY INFORMATION IT PROVIDES IN A SERVICE SPECIFICATION IS COMPLETE
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 reasonable professional costs and expenses) suffered or incurred by the Supplier in connection
with the contents of any Service Specification being incorrect. This clause 7.3 shall survive termination of the Contract.
The Customer should confirm the contents of any Service Specification before an Order is accepted. If the Customer
fails to do so, clause 7.3 shall apply notwithstanding.
The Supplier shall use all reasonable endeavours to meet any performance dates for the Services agreed in writing, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
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.
The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
The Customer shall:
ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
co-operate with the Supplier in all matters relating to the Services;
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;
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;
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;
comply with all applicable laws;
comply with any additional obligations as set out in the Service Specification and the Goods Specification;
inform the Supplier of all laws and regulations affecting the manufacture, sale, packaging and labelling of the Goods and delivery of the Services which are in force in the country, countries and / or territories where the Customer is based, re-sells the Goods (subject at all times to clause 8.2) or operates its business (or any part of
them) (Local Regulations);
the Customer shall give the Supplier as much advance notice as reasonably possible of any prospective changes to the Local Regulations.
The Customer shall not:
make any modifications or amendments to the Goods as supplied by the Supplier (including but not limited to any syrups supplied by the Supplier). The Goods are intended to be sold and used as supplied, and any attempt to alter the Goods by the Customer (including but not limited to dilution of syrup) will constitute a breach of the
Conditions and clause 13 shall apply;
copy, adapt, disassemble, modify, adapt the Goods in whole or in part;
use any information provided by the Supplier or obtained by the Customer pursuant to the Contract to create any goods whose expression is substantially similar to the Goods, nor use such information in any manner which would be restricted by any Intellectual Property Rights subsisting in it;
sell the Goods to other distributors. The Goods are supplied by the Supplier to the Customer for onward sale to end users only.
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):
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;
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 8.3; and
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.
PRICE AND PAYMENT
The price of the Goods and / or Services 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 in force as at the date of delivery.
The Supplier may, by giving notice to the Customer at any time up to 2 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
The price of the Goods excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
The price of Services excludes any associated third party costs (including but not limited to costs of materials or any additional costs and / or expenses when submitting applications to the Tobacco Products Directive 2014/14/EU).
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.
The Supplier may invoice the Customer for the Goods before, on or at any time after the completion of delivery. In respect of Services, the Supplier may invoice the Customer before or after completion of the Services.
The Customer shall pay the invoice in full and in cleared funds on the date of the invoice or within such other timeframe as notified by the Supplier in writing. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue
The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier 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 Supplier to the Customer.
INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in or arising out of or in connection with the Goods and Services shall be owned by the Supplier.
The Customer grants the Supplier a fully paid up, non-exclusive, royalty free non transferrable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
If the Supplier grants to the Customer a right to use its Trade Marks in the promotion, advertisement and sale of the Goods, the Customer acknowledges that all rights in the Trade Marks shall remain with the Supplier, and that the Customer has and will acquire no right in them by virtue of the discharge of its obligations under the Contract, except for the right to use the Trade Marks strictly in accordance with the Supplier’s written instructions from
time to time.
If the Customer is permitted to use the Trade Marks in accordance with clause 10.3, it shall do so only under the Trade Marks, and not in association with any other trade mark, brand or trade name, except as permitted in any written instructions from the Supplier. The Customer shall ensure that the appropriate Trade Marks appear on the Goods, containers and advertisements for the Goods, followed by the symbol ® or the letters RTM as appropriate.
All representations of the Trade Marks that the Customer intends to use shall be submitted to the Supplier for written approval before use.
The Customer shall comply with all rules for the use of the Trade Marks issued by the Supplier (including those set out in any branding manual issued by the Supplier) and shall not, without the prior written consent of the Supplier, alter or make any addition to the labelling or packaging of any Goods displaying the Trade Marks. The Customer shall not alter, deface or remove any reference to the Trade Marks, any reference to the Supplier or any other name displayed on the Goods or their packaging or labelling.
The Supplier makes no representation or warranty as to the validity or enforceability of the Trade Marks nor as to whether they infringe any Intellectual Property Rights of any third parties.
The Customer shall not sub-licence, transfer or otherwise deal with the rights to use any Trade Marks without the prior written consent of the Supplier.
The Customer shall not do, or omit to do, anything in its use of the Trade Marks that could adversely affect their validity or reputation.
The Customer acknowledges that the Contract does not operate to vest any right, title or interest in the Trade Marks in the Customer. The Customer shall immediately on request enter into any further agreements with the Supplier, in a form satisfactory to the Supplier, necessary for the recording, registration or safeguarding of the
Supplier’s Trade Marks or its Intellectual Property Rights generally.
The Customer shall promptly give notice in writing to the Supplier if it becomes aware of:
any infringement or suspected infringement of the Supplier’s Intellectual Property Rights (including but not limited to the Trade Marks);
any claim that the Services, Goods or the manufacture, use, sale or other disposal of any Goods, whether or not under the Trade Marks, infringes the rights of any third party.
In respect of any matter that falls within clause 10.11:
the Supplier shall in its absolute discretion, decide what action to take in respect of any matter (if any);
the Supplier shall conduct and have sole control over any consequent action it deems necessary.
The Customer shall, at the request and expense of the Supplier, provide any reasonable assistance to the Supplier
(including the use of its name in, or being joined as a party to, proceedings) with any action to be taken by the Supplier under this clause 10, provided the Supplier has given an indemnity in respect of the reasonable costs and expenses of the Customer in respect of such assistance (unless the dispute in question arises as a result of the act
or omission of the Customer or a breach of the Contract, in which case the Supplier will not be required to indemnify the Customer).
The Customer shall not obtain or try to obtain or register for itself anywhere in the world any trade marks or trade names the same as or similar to the Trade Marks or any trade marks or trade names used by the Supplier.
The Customer shall not use the Trade Marks as part of the name under which the Customer conducts its business, or any connected business, or under which it sells or services any products (except the Goods), or in any other way, excepts as permitted by the Supplier in writing.
The Customer shall immediately bring to the notice of the Supplier any improper or wrongful use of the Supplier’s Intellectual Property Rights (including but not limited to the Trade Marks) and the Customer shall on being so requested by the Supplier assist in taking all steps to defend the rights of the Supplier including the institution
of any actions which it may deem necessary to commence for the protection of any of its rights.
If the Supplier permits the Customer to use the Trade Marks (in writing), the Customer shall immediately stop using all or any part of them if notified to do so by the Supplier (whether or not in writing).
The Customer is only permitted to use the Supplier’s Designs with the prior written consent of the Supplier. If such consent has been provided, the Customer is only permitted to use the Supplier’s Designs in accordance with any instructions provided by the supplier. All content included or made available through the Supplier, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations and software is the
property of the Supplier (or its content suppliers, where appropriate), and is protected by any applicable laws relating to Intellectual Property Rights.
The Supplier may make Content available via its website (in accordance with the terms and conditions applicable to the Supplier’s website, as amended from time to time). The Supplier, their affiliated entities and / or their licensors own all Content made available through the website. Such Content shall be owned by the Supplier (or any relevant third party owners, where applicable). Unless the Supplier provides its written consent, the Customer may
not reproduce, modify, disseminate or otherwise exploit the Content in any way.
The Customer acknowledges that any Intellectual Property Rights in respect of any websites of the Supplier are owned by the Supplier (or any relevant third party owners, where applicable) in accordance with the terms and conditions applicable to the Supplier’s website (as amended from time to time). Such Intellectual Property Rights
shall not be used by the Customer without the prior written consent of the Supplier.
Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
the Customer 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;
the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods or the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.1.1 to clause 11.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
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 the Contract on the due date for payment.
On termination of the Contract for any reason the Customer shall:
immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest;
return all of the Supplier’s Equipment. If the Customer fails to do so, then the Supplier may enter the Customer’s premises or any premises where the Supplier’s Equipment is stored and take possession of the Supplier’s Equipment. Until it has been returned or repossessed, the Customer shall be solely responsible for its safekeeping.
Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
LIMITATION OF LIABILITY
Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
defective products under the Consumer Protection Act 1987; or
any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
Subject to clause 12.1:
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
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 110% of the price of the Goods and / or Services received pursuant to the Contract.
The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with:
the Customer’s breach of any of the Customer’s obligations under the Contract;
the Goods or Services not conforming with the Local Regulations;
the enforcement of the Contract.
The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
From time to time, and at the absolute discretion of the Supplier, the Supplier may allow the Customer to use the Supplier’s Equipment, strictly in accordance with these Conditions.
The Supplier’s Equipment shall at all times remain the property of the Supplier, and the Customer shall have no right, title or interest in or to the Supplier’s Equipment (save the right to possession and use of the Supplier’s Equipment subject to these Conditions).
The risk of loss, theft, damage or destruction of the Supplier’s Equipment shall pass to the Customer on delivery.
The Supplier’s Equipment shall remain at the sole risk of the Customer whilst it is in the possession, custody or control of the Customer.
The Customer shall:
give immediate written notice to the Supplier in the event of any loss, accident or damage to the Supplier’s Equipment;
ensure that the Supplier’s Equipment is kept and operated in a suitable environment;
keep the Supplier’s Equipment in such location as determined by the Supplier;
follow any instructions provided by the Supplier (whether written or oral) in respect of the Supplier’s Equipment;
ensure that the Supplier’s Equipment is only stocked with goods provided by the Supplier;
take such steps (including compliance with all safety and usage instructions provided) as may be necessary to ensure, so far as is reasonably practicable, that the Supplier’s Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
maintain at its own expense the Supplier’s Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on delivery, and shall make good any damage to the Supplier’s Equipment;
make no alteration to the Supplier’s Equipment and shall not remove any existing components from the Supplier’s Equipment;
keep the Supplier fully informed of all material matters relating to the Supplier’s Equipment;
permit the Supplier or its duly authorised representative to inspect the Supplier’s Equipment at all reasonable times and for such purpose to enter onto the Customer’s premises or any premises at which the Supplier’s Equipment may be located, and shall grant reasonable access and facilities for such inspection;
not, without the prior written consent of the Supplier, part with control of (including for the purposes of repair and maintenance), sell or offer for sale, underlet or lend the Supplier’s Equipment, or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
not, without the prior written consent of the Supplier, attach the Supplier’s Equipment to any land or building so as to cause the Supplier’s Equipment to become a permanent or immovable fixture on such land or building;
not do or permit to be done any act or thing which will or may jeopardise the right, title and / or interest of the Supplier in the Supplier’s Equipment;
not suffer or permit the Supplier’s Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process;
not use the Supplier’s Equipment for any unlawful purpose;
ensure that at all times the Supplier’s Equipment remains identifiable as being the Supplier’s property;
deliver up the Supplier’s Equipment immediately on demand by the Supplier at any time, or if necessary allow the Supplier or its representatives access to the Customer’s premises or any premises where the Supplier’s Equipment is located for the purpose of removing the Supplier’s Equipment.
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 2 months, the party not affected may terminate this Contract by giving 4
weeks written notice to the affected party.
Assignment and other dealings.
The Supplier may at any time assign, transfer, mortgage, 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, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
The Customer undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the Supplier or of any member of the group to which the Supplier belongs, except as permitted by clause 16.2.2. For the purposes of this clause, group means, in
relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
The Customer may disclose the Supplier’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Customer’s rights or carrying out its obligations under or in connection with this agreement. The Customer shall ensure that its employees, officers, representatives or advisers to whom it discloses the Supplier’s
confidential information comply with this clause 16.2; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
The Customer shall not use the Supplier’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
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.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict
the further exercise of that or any other right or remedy.
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 clause shall not affect the validity and enforceability of
the rest of the Contract.
If any provision or part-provision of the Contract is deemed deleted under clause 16.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
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 or other next working day delivery service, commercial courier, or email.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.8.1; if sent by pre-paid first class post or other next working day delivery service, 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 email, one 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.
Any notice given under or in connection with the Contract shall be in the English language.
Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
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 laws of England.
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 this Contract or its subject matter or formation.
Language. The Contract is drafted in the English language. If the Contract is translated into any other language, the English language text shall prevail.