Michael Weinig (UK) Limited - Terms and conditions for the supply of goods and services
Michael Weinig (UK) Limited
Terms and conditions for the supply of goods and services
The following definitions and rules of interpretation apply in this agreement.
Brexit: Brexit means the UK ceasing to be a member state of the European Union (if applicable), regardless of which countries comprise the UK at such date.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 14.12.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services shall consist of the Conditions together with an Order, the Supplier's Order Acknowledgement (or, in respect of an Order for Spare Parts, the Supplier's acceptance of the Order) and the Proposal to the extent provided for in clause 2.1.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Data Protection Legislation: the Data Protection Act 2018 and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: the deliverables set out in the Order and agreed by the Supplier that are to be produced by the Supplier for the Customer.
Delivery Location: has the meaning given in clause 4.1.
Force Majeure Event: has the meaning given to it in clause 14.1.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier whether set out in the Order or otherwise.
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).
Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Supplier's quotation as set out in the Proposal and/or the Supplier's catalogue, or via telephone, as the case may be.
Order Acknowledgement: has the meaning given in clause 2.2.
Proposal: a quotation for the supply of specific good and services by the Supplier to the Customer on these Conditions.
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 for the Services provided by the Supplier to the Customer in the Proposal.
Shift Operation: a period of time equivalent to seven (7) hours a day, five (5) days a week, forty six (46) weeks a year.
Spare Parts: any spare parts or materials used as part of any other goods.
Supplier: Michael Weinig (UK) Limited registered in England and Wales with company number 01617754.
Supplier Materials: has the meaning given in clause 8.1(h).
(a) 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 personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. 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 as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. These Conditions apply to the Contract to the exclusion of all other terms and conditions, unless otherwise expressly stated in the Proposal, and shall take priority over and apply to the exclusion of any inconsistent terms referred to in any Order, any Customer standard terms, or any terms that may be implied by custom, trade, practice or a course of dealings.
2.2 In respect of an Order for any Goods and/or Services excluding Spare Parts, the Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order ("Order Acknowledgement") and both parties sign the Order Acknowledgement at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 In respect of an Order for Spare Parts, the Order shall only be deemed to be accepted when the Supplier issues written or oral acceptance of the Order at which point and on which date the Contract shall come into existence and the definition of Commencement Date shall be construed accordingly.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any illustrations or descriptions of the Goods and/or Services (including, but not limited to, any description of the weight of the Goods and/or the packaging of the Goods) contained in the Proposal or the Supplier's catalogues or brochures 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.
2.5 Any quotation given by the Supplier, whether set out in the Proposal or otherwise, shall not constitute an offer, and is only valid for a period of 30 days (unless otherwise agree by the parties) from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.7 The Customer acknowledges that once an Order has been accepted, the Supplier will place relevant orders and incur expenses for the Goods and will allocate resources for the Services. Should the Customer wish to cancel an Order before delivery of the Goods and performance of the Services, it must give the Supplier written notice of the cancellation, and the Supplier will use reasonable endeavours to reallocate resources. The Customer acknowledges that it will be responsible for all unavoidable costs incurred by the Supplier in cancelling the Contract in accordance with this clause 2.7 and the Supplier may deduct such unavoidable costs from the Deposit (as defined in clause 9.6).
3.1 The Goods are described in the Supplier's catalogue and/or the Proposal as modified by any applicable Goods Specification.
3.2 The Supplier reserves the right to amend the Goods Specification if required in order for the Supplier to comply with its obligations under or in connection with the Contract and/or if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery of Goods
4.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location). If the Supplier and the Customer fail to agree the Delivery Location then the Delivery Location shall be at the Supplier's premises. Delivery of the Goods shall be completed on the completion of the Goods arriving at the Delivery Location (for the avoidance of doubt, delivery shall take place when the Goods arrive at the Delivery Location regardless of the Goods being unloaded at the Delivery Location).
4.2 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by:
(a) any breach of Contract by the Customer;
(b) a Force Majeure Event;
(c) 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;
(d) a change in any applicable law or regulatory requirement or a new requirement to comply with any applicable law, or the imposition of any trade tariffs or other restrictions or limitations on trade, that is instigated as a result of or in connection with Brexit; or
(e) any adverse impact that Brexit has on the Supplier's ability to perform its obligations under or connection with the Contract and the law.
4.3 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 any of the events listed in clause
4.4 If the Customer fails to take delivery of the Goods within ten 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 by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.5 If ten Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately in accordance with clause 9. 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.
5. Quality of Goods
5.1 Unless otherwise stated in the Proposal, the Supplier warrants that on delivery, and for a period of:
(a) 12 months from the date of delivery for a single Shift Operation (as set out in the Order); or
(b) 6 months from the date of delivery for a two Shift Operation (as set out in the Order); or
(c) 3 months from the date of delivery for a three or more Shift Operation (as set out in the Order)
(warranty period), the Goods shall:
(a) conform in all material respects with their description as set out in the Proposal; and
(b) be free from material defects in material and workmanship.
5.2 Subject to clause 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:
(a) the Customer gives notice in writing within 30 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) 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.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2 unless such use is approved by the Supplier in writing;
(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 Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions or handling;
(f) the Goods have been used by any third-party prior to the sale of the Goods by the Supplier or the Goods are second hand goods and as such are sold "as seen" by the Supplier as set out in the Proposal; or
(g) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 For the avoidance of doubt, unless otherwise stated in the Proposal, the Supplier makes no representations and gives no warranties as to the quality, condition, state or description of any Goods that have been used by any third-party prior to the sale of those Goods by the Supplier or any Goods that are second hand goods and as such are sold "as seen" by the Supplier as set out in the Proposal, or their fitness or suitability for any purpose. All implied statutory or common law terms, conditions and warranties as to any Goods that have been used by any third-party prior to the sale of those Goods by the Supplier or any Goods that are second hand goods and as such are sold "as seen" by the Supplier as set out in the Proposal are excluded to the fullest extent permitted by law.
5.5 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.
5.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods and services 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.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.2(a) to clause 13.2(c); and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 13.2(a) to clause 13.2(c), then, without limiting any other right or remedy the Supplier may have, the Supplier may require the Customer to deliver up all Goods in its possession or the Supplier may enter premises on which the Goods are located in order to recover them and the Customer shall use reasonable endeavours to provide the Supplier with access to the Customer's premises.
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 specified in the Proposal, 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 of its obligations under or in connection with the Contract or 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:
(a) ensure that the terms of the Order and any information it provides in the Service Specification and any Goods 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 subcontractors, 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 in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services, ensure that the state of the Customer's premises is compliant with all applicable laws and regulations concerning health and safety and that the Customer's premises provide a comfortable working environment to the Supplier's satisfaction;
(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) comply with all applicable laws, including health and safety laws;
(h) 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; and
(i) comply with any additional obligations as set out in the Proposal.
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):
(a) 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;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer (including but not limited to any delay in delivery of the Goods) arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; 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.
9. Charges and payment
9.1 The price for Goods:
(a) shall be the price set out in the Order or, if no price is quoted, the price set out in the Proposal or, if no Proposal is provided, the price set out in the Supplier's published price list as at the date of delivery; and
(b) shall be exclusive of:
(i) all insurance up to the point of delivery, postage, packaging, carriage, freight, and handling charges and costs (if any); and
(ii) any customs, import or other duties (if any) charged in respect of the sale and importation of the Goods into the country in which the Customer is resident or the Delivery Location is located whether or not arising from Brexit,
which may be invoiced to the Customer at the Supplier's sole discretion.
9.2 The charges for Services shall be the price set out in the Order or, if no price is quoted, the price calculated on a time and materials basis at the daily fee rates set out in the Proposal or otherwise agreed by the Supplier and Customer in writing. Daily fee rates are calculated on an eight-hour day between 8am and 5pm on any Business Day.
9.3 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses any associated 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 shall be entitled to charge the Customer for any unrecoverable costs and expenses incurred by the Supplier as a result of any delay by the Customer to accept delivery of the Goods, delay in installation or commissioning, delay by the Customer in providing the Supplier with any information requested by the Supplier in order for it to comply with its obligations under or in connection with the Contract, or any delay resulting from the Customer's failure to comply with its obligations under this Contract in relation to the supply of the Services.
9.5 The Supplier reserves the right to increase the price of 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:
(a) 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);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c) 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.
9.6 In respect of Goods, the Customer shall pay 20% of the price for the Goods (calculated in accordance with clause 9.1) (the Deposit) immediately upon the Supplier providing the Order Acknowledgement or otherwise accepting the Order and the Supplier shall invoice the Customer for the remaining 80% of the price for the Goods (calculated in accordance with clause 9.1) at any time before or after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services.
9.7 The Customer shall pay each invoice submitted by the Supplier in the currency stated in the Order Acknowledgement or the currency otherwise agreed by the parties in writing:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier,
time for payment shall be of the essence of the Contract.
9.8 If the Customer cancels an Order after the Order has been accepted by the Supplier then the Supplier reserves the right to retain a proportion of the Deposit to cover the Supplier's costs incurred in complying with its obligations under the Contract up to the date of cancellation.
9.9 Provided that the Customer is not in breach of any of its obligations under the Contract, if the Customer cancels an Order within 21 days of the Commencement Date, the Supplier shall as soon as reasonably practical transfer an amount equal to the Deposit less any deductions made by the Supplier in accordance with clauses 9.8 and 2.7 to the bank account nominated by the Customer. Without affecting any other right or remedy available to the Supplier, if the Customer is in breach of any of its obligations under the Contract or the Customer cancels the Order after 21 days of the Commencement Date then the Supplier may retain the Deposit in its entirety.
9.10 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).
9.11 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 clause 13 (Term, termination and consequences of termination), 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 clause 9.11 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%.
9.12 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 Goods and Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Goods, Services and the Deliverables in its business.
10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable 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 Goods and Services to the Customer.
11. Data protection
11.1 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is a processor, and each party agrees to comply with its obligations under the Data Protection Legislation.
11.2 Without prejudice to the generality of clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
11.3 Without prejudice to the generality of clause 11.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that personal data only on the written instructions of the Customer in to the extent necessary in the provision of the Services unless the Supplier is required by the Data Protection Legislation to otherwise process that personal data;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained;
(e) notify the Customer without undue delay on becoming aware of a personal data breach; and
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause.
12. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
12.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) 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).
12.3 Subject to clause 12.2, the Supplier's total liability to the Customer in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be capped at the lower of (i) the total value of the Order in the first 12 months following the Commencement Date; and (ii) £1,000,000.
12.4 Save in respect of liability arising under clause 12.2 the Supplier shall have no liability for: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of use or corruption of software, data or information; (vi) loss of or damage to goodwill; or any other special, indirect or consequential losses howsoever incurred.
12.5 Save as explicitly set out in these Conditions, all other warranties and representation are (whether implied by law, statute or practice) are excluded to the fullest extent possible.
12.6 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 12 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.7 This clause 12 shall survive termination or expiry of the Contract.
13. Term, termination and consequences of termination
13.1 The Contract begins on the Commencement Date and, subject to clause 13.2, clause 13.3 and clause 13.4, shall continue for the term as stated in the Order Acknowledgement (or, in respect of an Order for Spare Parts, the term as stated in the Supplier's acceptance of the Order).
13.2 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:
(a) 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;
(b) 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
(c) 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.
13.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract:
(a) with immediate effect by giving written notice to the Customer if:
(i) the Customer fails to pay any amount due under the Contract on the due date for payment;
(ii) there is a change of Control of the Customer; or
(iii) the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so,
(b) for convenience by giving the Customer 1 month's written notice.
13.4 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 clause 13.2(a) to clause 13.2(c), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
13.5 On termination of the Contract:
(a) the Supplier shall be entitled to submit an invoice for all outstanding costs that it has incurred to date and 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
(b) 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.
13.6 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.
13.7 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
14.1 Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).
14.2 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract. Each party 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 other party, except as permitted by this clause 14.2. Each party may disclose the other party's confidential information:
(a) 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 clause 14.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 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.
14.4 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, 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.
14.5 Any notice or other communication given to a party under or in connection with this agreement 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). Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) 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 or at the time recorded by the delivery service,
this clause 14.5 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14.6 A notice given under this agreement is not valid if sent by email.
14.7 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.
14.8 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 right or remedy. 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.
14.9 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.
14.10 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. 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.
14.11 Unless it expressly states otherwise, 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.
14.12 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).
15. Governing law and jurisdiction
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. 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.