Project Installations Terms & Conditions
Terms and Conditions of Sale (Business to Business – Project Installations)
1 Definitions and Interpretation
1.1 In these Conditions, the following words and expressions shall have the following meanings:
Anticipated Installation End Date means the anticipated end date for the installation of the Goods, as specified in the Contract Details (as may be revised in accordance with the Contract);
Anticipated Installation Start Date means the anticipated start date for the installation of the Goods, as specified in the Contract Details (as may be revised in accordance with the Contract);
Client means the client identified in the Contract Details;
Conditions means these terms and conditions as amended from time to time in accordance with condition 3.1;
Contract means the contract between the Supplier and the Client for the supply and purchase of Goods in accordance with the documents referred to in condition 2.1;
Contract Date means the date of the Contract as set out in the Contract Details;
Contract Details means the Contract Details section set out at the front of the Contract;
Deliverables means all designs, drawings, images, plans and other works created, generated, discovered, acquired and/or developed by or on behalf of the Supplier in connection with the supply of the Goods;
Goods means the goods agreed in the Contract to be supplied to the Client by the Supplier (including any part or parts of them), as set out in the Contract Details;
Installation Schedule means the installation schedule referred to in the Contract Details (as may be revised in accordance with the Contract);
Intellectual Property Rights means patents, utility models, rights to inventions, copyright 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 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.
Lead Times means the minimum lead times required for delivery of Goods, as set out in the Contract Details, which shall be calculated from the Contract Date or, if later, the date of receipt by the Supplier of payment in cleared funds of any agreed deposit for the Goods;
Price means the price of the Goods, as set out in the Contract Details;
Product Code means the product code allocated to the Goods by the Supplier, identifying the type of Goods;
Programme of Works means the programme of works schedule referred to in the Contract Details (as may be revised in accordance with the Contract);
Request for Information means the request for information form attached at Schedule B;
Site means the site identified in the Contract Details;
Site Hours means the hours during which the Site will be accessible for deliveries and installations, as set out in the Contract Details;
Site Survey means the site survey referred to in the Contract Details;
Specification means the specification for the Goods, as set out in the Contract Details;
Supplier means Halls Furnishings Ltd, as identified in the Contract Details;
Variation means a reasonable variation to the Specification, the location of the Goods within the Site, or the Anticipated Installation Start Date, the Anticipated Installation End Date or the Installation Schedule;
Variation Order means the written record of any Variation agreed or to be agreed by the parties pursuant to clause 3, in the form set out in Schedule A;
Working Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
1.2 A reference to a Schedule is to a Schedule of the Contract.
1.3 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.4 Where the context requires, words in the singular include the plural and vice versa and any gender includes the other gender.
1.5 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.
1.6 Headings are for convenience only and do not affect the interpretation of these Conditions.
2 Basis of Contract
2.1 The Contract consists of the documents set out in paragraph 1 of the front page of the Contract. No other terms and conditions, including terms and conditions endorsed on, delivered with or referred to in such documents, shall form part of the Contract.
2.2 The Contract is for the supply and purchase of all of the Goods. Once the Contract is entered into, the Client shall have no right to cancel, return, amend the Specification or reduce the volume of Goods to be supplied, except in accordance with an agreed Variation Order pursuant to clause 3 or any other provisions of the Contract.
3.1 Either party may from time to time submit a written request for a Variation to the other party in accordance with this clause 3.
If the Client requests a Variation: (a) the Client will submit a written request to the Supplier containing as much information as is necessary to enable the Supplier to prepare a Variation Order; and (b) within three Working Days of receipt of a request, the Supplier will acknowledge receipt of the request and as soon as reasonably practicable thereafter the Supplier will either, send to the Client a Variation Order or notify the Client of its decision to decline the Variation.
If the Supplier requests a Variation, it will send to the Client a Variation Order and the Client shall within three Working Days of receipt of the Variation Order either accept or decline the Variation.
No Variation shall be binding unless a Variation Order has been signed by the authorised representatives of both parties. For this purpose, the authorised representatives are the individuals identified in the Contract Details. If no individuals are identified in the Contract Details the Supplier shall be entitled to accept and act upon, and the Client shall be bound by, a Variation Order signed by any person who the Supplier reasonably considers to be an authorised representative of the Client for this purpose. A Variation Order signed by the Client and by the Supplier shall constitute an amendment to the Contract.
3.2 Any Variation to the Anticipated Installation Start Date and / or Anticipated Installation End Date shall allow for the Lead Times. Any Variation to the Installation Schedule shall take account of the timescales required to change any deliveries as set out in clause 4.3. The Client shall notify the Supplier in writing as soon as reasonably possible upon becoming aware of any circumstances which will or are likely to result in a deferment of the Anticipated Start Date.
3.3 Any Variation Order shall be subject to the parties agreeing any consequential change in the Price and the Installation Schedule. Any Variations to the Price shall either be a sum agreed between the parties or, in the absence of such agreement, shall be determined in accordance with the rates set out in the Contract Details or the Schedule of prices or, if no such rates are set out, shall be such sum as in all the circumstances is fair and reasonable. Where the Variation is requested by the Client, the Variation to the Price shall also take into account any direct loss and/or expense incurred by the Supplier due to the regular progress of the installation of the Goods being affected by any compliance with the Variation Order.
3.4 Where the parties agree to defer the Anticipated Installation Start Date, the Client shall be liable for any related costs, including warehousing and insurance costs, beyond the first 28 days of deferment.
3.5 Where, at the Client's request, the parties agree a deferment of the Anticipated Installation Start Date, the Anticipated Installation End Date or the Installation Schedule by more than three months, the Supplier shall be entitled to payment as if delivery and installation of the Goods had been completed in accordance with the original Installation Schedule and the Supplier shall issue a vesting certificate substantially in the form set out in Schedule C.
4 Delivery of Goods
4.1 The Supplier shall use reasonable endeavours to deliver the Goods in accordance with the Installation Schedule, provided that the Installation Schedule allows for the Lead Times, but time for delivery shall not be of the essence in the Contract. Delivery shall be completed when the Goods are unloaded at the Site.
4.2 Unless otherwise agreed in writing by the Supplier, delivery of the Goods shall take place at the Site during Site Hours and during the Supplier’s standard business hours (Monday to Friday 09:00 to 18:00).
4.3 The Supplier will notify the Client’s Site Manager of all the Supplier’s deliveries that are being booked in to arrive at the Site. The Client must give the Supplier a minimum of three Working Days’ notice to cancel, change or book in a delivery at the Site. If the notice is not given before 1pm on a Working Day, it will be deemed to have been given on the following Working Day. If, exceptionally, the Supplier agrees to accept less than three Working Days’ notice, additional charges may apply.
4.4 Each delivery of the Goods will be accompanied by a delivery note which shows relevant Customer and Supplier references, and the type and quantity of the Goods.
4.5 The Client shall ensure that the set down and unloading area at the Site is within 40m of the access point to the building in which the Goods are to be installed.
4.6 The Client shall ensure that an authorised individual is available on Site to accept delivery of the Goods and to provide instructions, directions and access relating to the building and location at which they are to be installed.
4.7 If any Goods listed on the delivery note are missing, the Client's representative shall inform the Supplier by noon on the day following delivery, by providing a copy of the delivery note to the Supplier with the missing items marked. The Client acknowledges that by not informing the Supplier of any missing goods in this way within the said timescale, the Goods specified on the delivery note shall be deemed to have been delivered, unless the Client can provide conclusive evidence proving the contrary.
4.8 If for any reason the Client fails to accept delivery of any of the Goods when they are ready for delivery in accordance with the Contract, or the Supplier is unable to deliver or install the Goods on time because the Client has failed to comply with any of its obligations under the Contract (including, but not limited to, those in this condition or condition 8 (Client’s Obligations)) or if delivery and/or installation is otherwise hindered or delayed or cannot be made as a result of any reason not attributable to the Supplier (including where the Client has requested a Variation but failed to sign the Variation Order):
(a) the Supplier may store the Goods until delivery; the Client shall be liable for all related costs and expenses (including, without limitation, warehousing costs and insurance), save that the Supplier will bear the costs of storage and insurance for the first 28 days from the original agreed delivery date. For the avoidance of doubt, where the delivery date has been extended by a Variation Order, the Client shall be liable for all costs of storage and insurance for any period beyond the first 28 days from the original (pre-Variation Order) delivery date;
(b) the Client may also become liable for the Supplier's reasonable costs incurred in relation to any further attempt to deliver and/or install (including, without limitation, out of hours charges); and
(c) the Supplier shall be entitled to receive payment of any outstanding balance of the Price as if delivery and installation of the Goods had been completed at the time of attempted delivery.
(d) if the resulting delay to the Anticipated Installation Start Date, the Anticipated Installation End Date or the Installation Schedule is more than three months, the Supplier shall be entitled to payment as if delivery and installation of the Goods had been completed in accordance with the original Installation Schedule and the Supplier shall issue a vesting certificate substantially in the form set out in Schedule C.
4.9 The Supplier shall ensure that all packaging and other materials brought to the Site by the Supplier in respect of the supply of Goods shall be removed from the Site in a timely manner upon completion of installation of the Goods.
4.10 The Supplier shall ensure that, while at the Site in connection with the supply, delivery, assembly or installation of Goods under a Contract, the Supplier's employees and subcontractors shall adhere to the Site health and safety policies as notified to the Supplier or otherwise brought to the notice of the Supplier or such persons.
4.11 The Client shall, within 7 days of the delivery of the Goods, notify the Supplier of any defect by reason of which the Client alleges that the Goods delivered are not in accordance with the Specification and which should be apparent on reasonable inspection, and/or that the delivery has resulted in damage to the Goods and, if required, shall provide the Supplier with a reasonable opportunity to inspect such Goods and the Supplier shall, at its option, either repair the Goods or deliver to the Client goods of equivalent or better quality than the Goods which in all material respects correspond with the Specification of the Goods in terms of design, colour and material used. If the Supplier complies with this condition 4.11, it shall be deemed to have delivered the Goods in accordance with the Contract and shall have no further liability in relation to such Goods, save for any liability under condition 6.4. In any event, the Supplier shall not be liable for any defects in or damage to the Goods unless it has had a reasonable opportunity to inspect and make good such defects or damage.
4.12 If the Client fails to give notice under condition 4.11 then, except in respect of any defect that is not one which should be apparent on reasonable inspection, the Goods shall be deemed conclusively to be in all respects compliant with the Specification and accepted by the Client.
4.13 The Client shall, within 7 days of the delivery or removal of the Goods, notify the Supplier of any damage to possessions or premises which has allegedly been caused in the delivery, assembly, installation or removal of the Goods, including a description of such damage and shall provide the Supplier with photographs of the alleged damage upon request and/or a reasonable opportunity to inspect such alleged damage and give the Supplier opportunity to repair the damage. If the Client fails to give the Supplier notice under condition 4.13, the Supplier shall not be responsible for any damage to possessions or premises allegedly caused in the delivery, assembly, installation or removal of the Goods. In any event, the Supplier shall not be liable for any minor damage such as scratches or scuffs or for any unavoidable damage such as holes drilled in walls to attach furniture or accessories, caused to possessions or premises during delivery, assembly, installation or removal of the Goods, nor shall the Supplier be liable for any damage unless it has been provided with satisfactory photographic evidence (where requested) of the alleged damage and/or had a reasonable opportunity to inspect and make good such damage. The Supplier shall not be liable for any damage caused where the installation or removal of the Goods has been carried out by the Client or its other contractors.
4.14 The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.15 Each instalment shall be a separate Contract and failure by the Supplier to deliver any one or more of the instalments in accordance with the Contract, or any claim by the Client relating to an instalment, shall not entitle the Client to repudiate or cancel any other Contract or instalment.
4.16 Without prejudice to condition 4.7, if any expected delivery of Goods is not made on the agreed delivery date, the Client shall give written notice to the Supplier of the non-delivery within 2 Working Days of the expected delivery date and any liability of the Supplier for non-delivery of the Goods shall be limited to replacing the Goods, within a reasonable time, with goods of equivalent or better quality than the Goods which in all material respects correspond with the description of the Goods in terms of design, colour and material used. If the Supplier complies with this clause 4.16, it shall be deemed to have delivered the Goods in accordance with the Contract and shall have no further liability in relation to such Goods other than under clause 6.4.
5 Extension of time
5.1 If the Supplier is delayed in delivering or installing the Goods in accordance with the Installation Schedule as a result of any Variation pursuant to condition 3, any act or omission on the part of the Client, or any circumstances beyond the reasonable control of the Supplier, the Supplier shall notify the Client in writing and the Client shall grant such extension of the time for performance as is reasonable.
6 Quality of Goods
6.1 The Supplier warrants that the Goods sold to the Client shall comply in all material respects with the Specification (unless otherwise agreed by the parties in writing).
6.2 The Supplier reserves the right to make any changes in the Specification which are required to conform with any applicable statutory or EU specification.
6.3 The Client acknowledges that it is the Client's responsibility:
(a) to ensure that the Goods will be fit for the purpose for which the Goods are intended;
(b) to undertake PAT testing of any electrical Goods; and
(c) unless expressly stated otherwise in the Contract, to ensure that any pipes, electrics or other connections to which the Goods are connected are fit for purpose and suitable for connection to the Goods and in good working order.
6.4 Subject to the remaining provisions of this clause 6, if within a period of 12 months from delivery (Warranty Period) any of the delivered Goods are proved to the reasonable satisfaction of the Supplier not to comply with the Specification due to defects in materials, workmanship or composition, the Supplier at its option will:
(a) replace, free of charge, such Goods with Goods which conform in all material respects with the Specification;
(b) refund any part of the Price of such Goods that has been paid by the Client; or
(c) agree a reduced Price for such Goods.
6.5 The Supplier's obligation under condition 6.4 will not apply where:
(a) the Goods are electrical goods which are subject to a manufacturer’s warranty or guarantee, in which case the Client shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer;
(b) the Client makes any further use of such Goods after notifying the Supplier of the defect;
(c) the defect arises as a result of the Supplier following any specification, plan, drawing, design, site survey, risk assessment or method statement supplied by the Client, including where this is part of the Specification;
(d) the Goods are assembled or re-assembled other than by the Supplier;
(e) the Goods have been subject to misuse (including any kind of use inconsistent with the Specification or the Supplier's or manufacturer's instructions);
(f) the Goods have been altered or repaired other than with the express written consent of the Supplier;
(g) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards;
(h) any instructions for storage, care or maintenance of the Goods have not been complied with in all material respects; or
(i) the defect arises as a result of wilful damage or negligence.
(j) the Goods are moved from the original delivery location, including removal to another room or unit within the same development, other than by the Supplier.
6.6 The remedies available to the Client under condition 6.4 are subject to:
(a) the Client notifying the Supplier in writing of any defect within 7 days of the date on which it did, or ought reasonably have, come to the Client's attention, and in any event within the Warranty Period;
(b) the Client, if required by the Supplier, providing the Supplier with a reasonable opportunity to inspect the Goods which the Client claims are defective; and
(c) the Client making any defective Goods available for collection by the Supplier or otherwise disposing of the defective Goods in accordance with the Supplier’s written instructions where a replacement is to be provided.
6.7 If the Supplier complies with condition 6.4 it shall have no further liability for breach of the warranty in condition 6.1 in respect of such Goods. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under condition 6.4(a).
6.8 Any defective Goods that have been replaced will belong to the Supplier.
7 Risk and Title
7.1 The Goods are at the risk of the Client from the time of delivery.
7.2 Except where the Contract expressly provides otherwise, ownership of the Goods shall not pass to the Client until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Supplier from the Customer on any account.
7.3 Until ownership of the Goods has passed to the Client, the Client shall:
(a) keep the Goods insured on the Supplier's behalf for their full price against all risks to the reasonable satisfaction of the Supplier, and on request the Client shall produce the policy of insurance to the Supplier;
(b) notify the Supplier immediately if it becomes subject to any of the events set out in conditions 12.1(c) or 12.1(d); and
(c) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 Subject to condition 7.5, the Customer may use or resell the Goods before ownership would otherwise have passed to it under condition 7.2, solely on the following conditions:
(a) any use or sale shall be effected in the ordinary course of the Client's business; and
(b) the Client shall deal as principal (and not as the Supplier's agent) when making such a sale.
7.5 The Client's right to possession of the Goods shall terminate immediately:
(a) on the occurrence of any of the events set out at conditions 12.1(c) and 12.1(d); or
(b) if the Client encumbers or in any way charges any of the Goods.
7.6 The Supplier shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Supplier.
7.7 The Supplier may at any time require the Client to deliver up the Goods to the Supplier and, if the Client fails to do so promptly, the Supplier, its agents and employees may enter any premises of the Client or a third party where the Goods are or may be stored in order to inspect them, or, where the Client's right to possession has terminated, to recover them.
7.8 On termination of the Contract, howsoever caused, the Supplier's (but not the Client's) rights contained in this condition 7 shall remain in effect.
8 Client's Obligations
8.1 The Client shall:
(a) ensure that the terms of the Specification are complete and accurate;
(b) provide the Supplier, its employees, agents, consultants and subcontractors, with clear and unobstructed access to the set down and unloading area, to the building access point and to the installation location at the Site and to any other facilities as reasonably required by the Supplier to deliver, assemble and install the Goods and shall provide the Supplier in advance with information relating to any specific requirements or restrictions that may prevent the Supplier from accessing such parts of the Site or facilities for such purposes;
(c) prepare the set down and unloading area, the building access point and the installation location at the Site so that they are safe and suitable for the delivery, assembly and installation of the Goods and co-operate with the Supplier in all matters relating to the delivery, assembly and installation of the Goods;
(d) be responsible for checking the accuracy of the Site Survey and for ensuring that the conditions at the Site (including any dimensions), at the time of delivery and installation, are materially the same as the conditions identified in the Site Survey;
(e) be responsible for PAT testing of any electrical Goods and for ensuring that any pipes, electrics or other connections to which the Goods are connected are fit for purpose and suitable for connection to the Goods and in good working order in accordance with clause 6.3;
(f) provide the Supplier, its employees, agents, consultants and subcontractors, at the Client's cost, with exclusive use of a mechanical means of vertical distribution (such as a lift or hoist) at the Site throughout each installation of Goods;
(g) ensure that an authorised representative is, within 24 hours of a written request from the Supplier, available at the Site to sign off each completed stage of the installation of the Goods;
(h) provide the Supplier with such information and materials as the Supplier may reasonably require to comply with its obligations under the Contract, and ensure that such information is accurate in all material respects. If requested by the Supplier the Client shall provide such information by completing a Request For Information; and
(i) obtain and maintain all necessary licences, permissions and consents which may be required for the delivery, assembly and/or installation of the Goods before the date on which the Goods are due to be delivered.
9 Price and Payment
9.1 Unless otherwise specified by the Supplier, the Price of the Goods shall be:
(a) exclusive of delivery to the Site, assembly and installation at the Site, and subject to any additional storage, delivery and installation costs which the Supplier is entitled to charge under the terms of the Contract; and
(b) exclusive of all taxes and duties including, without limitation, value added tax, which (if applicable) shall be payable by the Client subject to receipt of a valid VAT invoice.
9.2 Where delivery to the Site and / or installation at the Site have been specified, the Price shall be based on a floor by floor installation schedule unless otherwise agreed in writing by the Supplier.
9.3 Where 'delivery only' or ‘drop to site’ has been specified this shall not include offloading; it shall be the Client’s responsibility to provide labour to offload the Goods within two hours from the arrival of the Goods delivery. The Supplier reserves the right to charge costs if offloading exceeds two hours and / or the Client fails to provide the necessary labour.
9.4 The Supplier reserves the right to increase the Price if any extra cost is incurred by the Supplier as a result of the inaccuracy or incompleteness of any instructions or information issued by the Client, or as a result of any failure or delay by the Client in supplying any information, drawings, specifications or access required to enable the Supplier to proceed with the Contract or any failure by the Client to comply with its obligations under condition 8.
9.5 The Supplier may invoice the Client for the Price of the Goods in accordance with the invoicing and payment terms set out in the Contract Details.
9.6 Subject to condition 9.6, and unless agreed otherwise in writing, the Client shall pay to the Supplier the Price in pounds sterling in accordance with the payment terms stated in the Contract Details.
9.7 Any part of the Price which is due upon execution of the Contract shall constitute a deposit which is non-refundable except in circumstances where the Contract is terminated by the Client pursuant to condition 12.1.
9.8 All payments payable to the Supplier under the Contract shall become due immediately on its termination despite any other provision.
9.9 The Client shall make all payments due under the Contract in full, in cleared funds, without any set-off, counterclaim, discount, abatement, deduction or withholding (except for any deduction or withholding required by law).
9.10 The Supplier is provided with credit insurance by Euler Hermes, the world’s largest credit insurance, to protect against unpaid invoices and provide debt collection services. As part of this policy service, the Supplier is required to report any overdue invoices that remain outstanding to Euler Hermes who may then contact the Client directly to instigate and perform debt recovery. The Client agrees to indemnify the Supplier in full and hold the Supplier harmless from all expenses and liabilities that may be incurred (directly or indirectly including financing costs, including legal costs on a full indemnity basis and the cost of instructing a debt recovery agency to recover a debt due) following any breach by the Client of any of their obligations under these terms.
9.11 If the Client fails to pay the Supplier any sum due pursuant to the Contract, the Client shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of The Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment.
10 Intellectual Property
10.1 It is agreed and acknowledged that all right, title and interest (including all Intellectual Property Rights) subsisting in any Deliverables shall at all times (as between the parties) be and remain solely owned by the Supplier. The Client shall be entitled to utilise the same solely in connection with the specific project in respect of which the Goods are supplied. This clause 10.1shall not operate to transfer any Intellectual Property Rights subsisting in materials provided by the Client.
10.2 The Client acknowledges that no right or licence to use any of the Intellectual Property Rights in or arising out of or in connection with the supply of the Goods is granted to the Client, except to the extent set out in clause 10.1.
10.3 The Client acknowledges that any Deliverables produced by the Supplier are produced solely for the benefit of and on the instructions of the Client, and not for the benefit of any party other than the Client and the Client shall not sub-license, assign or otherwise transfer the rights granted by this clause 10.
10.4 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Client to the Supplier for the term of the Contract for the purpose of supplying the Goods and any ancillary services to the Client.
10.5 Without prejudice to the generality of the other provisions of this clause 10, the Client shall not use the Supplier's name, logo or any other identification marks for the purpose of advertising or publicity without the prior written consent of the Supplier.
11 Limitation of Liability
11.1 The Supplier does not attempt to exclude any liability:
(a) for breach of the Supplier's obligations arising under section 12 of the Sale of Goods Act 1979 (title and quiet possession);
(b) for breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(c) for defects in products under section 2(3) of the Consumer Protection Act 1987;
(d) for fraud or fraudulent misrepresentation;
(e) for personal injury or death resulting from the Supplier's negligence; or
(f) in respect of any matter for which it would be illegal for the Supplier to exclude or to attempt to exclude its liability.
11.2 The limitations of liability set out in this condition 11 set out the Supplier's entire liability, (howsoever caused, even if it results from the Supplier's negligence or breach of statutory duty) including, but without limitation, liability which arises out of or in connection with:
(a) any of the Goods;
(b) the manufacture, sale or supply, or failure or delay in supply, of the Goods by the Supplier or on the part of the Supplier's employees, agents or sub-contractors;
(c) the delivery, assembly, installation or removal of the Goods;
(d) any breach by the Supplier of any of the express or implied terms of these Conditions or the Contract;
(e) any use made or resale by the Client of any of the Goods, or of any products incorporating any of the Goods; or
(f) any statement made or not made, or advice given or not given, by or on behalf of the Supplier.
11.3 The Supplier shall not be liable to the Client for any:
(a) loss of profit;
(b) loss of anticipated profit;
(c) loss of business;
(d) loss of contract;
(e) economic loss;
(f) overhead recovery;
(g) anticipated savings;
(h) loss of data;
(i) loss of production;
(j) depletion of goodwill;
(k) product recall; or
(l) special, indirect or consequential loss or damage, or otherwise for any costs, expenses or other claims for consequential, compensation whatsoever.
11.4 Subject to condition 11.1, the Supplier's total aggregate liability under or in connection with the Contract shall be limited to the Price the Supplier has received under the Contract in respect of the defective Goods.
11.5 Except as otherwise provided in these Conditions, all warranties, conditions and other terms implied by statute or common law (except for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
12.1 Either party shall be entitled to terminate the Contract immediately by giving notice in writing to the other party upon the occurrence of any of the following:
(a) the other party being in material breach of any of these Conditions and such breach not being capable of remedy;
(b) the other party being in material breach of any of these Conditions and failing to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
(c) the other party has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the other party or notice of intention to appoint an administrator is given, or a resolution is passed or a petition presented to any court for the winding-up of the other party or for the granting of an administration order in respect of the other party, or any proceedings are commenced relating to the insolvency or possible insolvency of the other party;
(d) the other party suffers the equivalent of any similar or analogous event in (c) above in any jurisdiction.
12.2 Without prejudice to any of its other rights or remedies, the Supplier shall have the right to terminate the Contract immediately by giving notice in writing to the Client, without any liability to the Client if:
(a) in the reasonable opinion of the Supplier after an inspection into the Client's financial or trade status or in light of any report considered by the Supplier, the Supplier at its absolute sole discretion deems that the Client may not be able to pay the Price; or
(b) a separate entity acquires Control of the Client, or the Client is merged with a separate entity. "Control" for the purposes of these Conditions and the Contract shall mean where an entity has 50% or more of the shares or stocks in the Client or is able to direct the Client's affairs and/or control the composition of the Client's board of directors or equivalent body.
12.3 Without prejudice to any of its other rights or remedies, the Supplier shall have the right to suspend any further deliveries under the Contract without any liability to the Client if:
(a) the Client fails to pay the Price or any amount due under the Contract or any other contract between the parties; or
(b) in the reasonable opinion of the Supplier after an inspection into the Client's financial or trade status or in light of any report considered by the Supplier, the Supplier at its absolute sole discretion deems that the Client may not be able to pay the Price; or
(c) a separate entity acquires Control of the Client, or the Client is merged with a separate entity. "Control" for the purposes of these Conditions and the Contract shall mean where an entity has 50% or more of the shares or stocks in the Client or is able to direct the Client's affairs and/or control the composition of the Client's board of directors or equivalent body.
12.4 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.
12.5 Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
13.1 Neither party shall be entitled to assign the Contract or any part of it without the prior written consent of the other party (not to be unreasonably withheld or delayed).
14 Force Majeure
14.1 The Supplier reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods to be supplied to the Client (without being in breach of contract and without liability to the Client) if it is prevented from or delayed in the performance of any of its obligations under the Contract due to circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
15.1 Each party undertakes that it shall not at any time during the Contract, and for a period of one year after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by condition 15.2(b). For the purposes of this condition, 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.
15.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this condition 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
16 Dispute Resolution
16.1 Any dispute arising out of these Conditions or the Contract must first be referred to a senior executive of each party and they or their nominees shall meet in good faith in order to try to resolve the dispute.
16.2 If the dispute is not resolved by the meeting between senior executives detailed at condition 16.1, either party may (at such meeting or within 14 calendar days of its conclusion) refer the dispute to a mediator to be appointed by agreement between the parties. If the parties fail to make such appointment within 7 days of the referral to the senior executives, either party may ask CEDR to appoint a mediator.
16.3 If either party refuses at any time to participate in the mediation procedure set out at condition 16.2, and in any event, if the dispute is not resolved within 30 days of the appointment of the mediator, then either party may apply to the Courts for resolution of the relevant dispute in accordance with condition 18.9.
17.1 Notices under the Contract shall be in writing and served by personal delivery or by pre-paid recorded delivery to such address as is last notified in writing by the parties.
17.2 Notices shall be deemed to be served:
(a) on delivery where delivered personally; or
(b) two days after mailing if sent by pre-paid recorded delivery.
18.1 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.
18.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
18.3 Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
18.4 Subject to condition 3, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.5 Any waiver by a party of any breach of, or any default under, any provision of the Contract by the other party shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
18.6 Nothing in the Contract or these Conditions shall be construed as creating a partnership between the parties.
18.7 The parties do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18.8 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.9 Subject to condition 16, each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).