Terms and Conditions

1                    Definitions and interpretation

1.1              In these Conditions the following definitions apply:

Affiliate

means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

Bribery Laws

means the Bribery Act 2010 and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption;

Business Day

means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;

Conditions

means the Supplier’s terms and conditions of sale set out in this document;

Confidential Information

means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;

Contract

means the agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order;

Customer

means the person who purchases the Deliverables from the Supplier and whose details are set out in the Order;

Deliverables

means the Goods or Services or both as the case may be;

 

Force Majeure

means an event or sequence of events beyond any party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action including strikes or other industrial disputes involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;

Goods

means the goods and related accessories, spare parts and documentation and other physical material set out in the Order and to be supplied by the Supplier to the Customer;

Intellectual Property Rights

means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case:

(a)               whether registered or not

(b)               including any applications to protect or register such rights

(c)                including all renewals and extensions of such rights or applications

(d)               whether vested, contingent or future

(e)               to which the relevant party is or may be entitled, and

(f)                 in whichever part of the world existing;

Location

means the address(es) for delivery of the Goods and performance of the Services as set out in the Order;

Modern Slavery Policy

means the Supplier's anti-slavery and human trafficking policy in force and notified to the Customer from time to time;

Order

means the Customer's order for the Deliverables in substantially the same form as set out in the Customer's order form;

Price

has the meaning given in clause 3.1;

Services

means the services set out in the Order and to be supplied by the Supplier to the Customer;

Specification

means the description or specification of the Deliverables set out or referred to in the Order;

Supplier

means Kintech Limited (Company Number 06773903) whose Registered Office is situate at Copenhagen Road, Hull, East Yorkshire, HU7 0XQ; and

Supplier Personnel

all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their subcontractors who are engaged in the performance of the Services from time to time.

VAT

means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.

1.2              In these Conditions, unless the context otherwise requires:

1.2.1        a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);

1.2.2        any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;

1.2.3        a reference to a ‘party’ means either the Supplier or the Customer and includes that party’s personal representatives, successors and permitted assigns;

1.2.4        a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns

1.2.5        a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6        a reference to a gender includes each other gender;

1.2.7        words in the singular include the plural and vice versa;

1.2.8        any words that follow 'include', 'includes', 'including', ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.9        a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;

1.2.10    a reference to legislation is a reference to that legislation as in force at the date of the Contract; and

1.2.11    a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2                    Application of these Conditions

2.1              These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.

2.2              Where the Customer is a consumer as defined in the Consumer Rights Act 2015 Part B these provisions apply

2.3              No terms or conditions endorsed on, delivered with, or contained in the Customer's purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.

2.4              No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Customer.

2.5              Each Order by the Customer to the Supplier shall be an offer to purchase the Deliverables subject to these Conditions.

2.6              The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier until withdrawn by the Customer giving notice to the Supplier after the expiry of 15 Business Days from the date on which the Customer submitted the Order.

2.7              The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:

2.7.1        the Supplier’s written acceptance of the Order; or

2.7.2        the Supplier delivering or performing the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).

2.8              Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.

2.9              The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer.

2.10          Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.

3                    Price

3.1              The price for the Deliverables shall be as set out in the Order or, in default of such provision, shall be calculated in accordance with the Supplier's scale of charges in force from time to time (Price).

3.2              The Prices are exclusive of:

3.2.1        Delivery costs which shall be charged in addition at the Supplier’s standard rates unless specifically included and confirmed in writing, and

3.2.2        VAT.

3.3              The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.

3.4              The Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Deliverables which exceeds 3% and which is due to any factor beyond the control of the Supplier.

4                    Payment

4.1              The Supplier shall invoice the Customer for the Deliverables at any time.

4.2              The Customer shall pay all invoices:

4.2.1        in full without deduction or set-off, in cleared funds in accordance with the terms of each invoice; and

4.2.2        to the bank account nominated by the Supplier.

4.3              Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:

4.3.1        the Supplier may, without limiting its other rights, charge interest on such sums at 6% a year above the base rate of HSBC Bank Plc from time to time in force, and

4.3.2        interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.

5                    Credit limit

The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.

6                    Delivery and performance

6.1              The Goods shall be delivered by the Supplier to the Location on the date(s) specified in the Order. The Goods shall be deemed delivered by the Supplier on arrival of the Goods at the Location.

The Services shall be performed by the Supplier on the date(s) specified in the Order. The Services shall be deemed delivered by the Supplier only on completion of the performance of the Services.

6.2              The Supplier may deliver or perform the Deliverables in instalments. Any delay in performance or defect in an instalment shall not entitle the customer to cancel any other instalment.

6.3              Each delivery or performance of the Deliverables shall be accompanied by a delivery note stating:

6.3.1        the date of the Order;

6.3.2        the relevant Customer and Supplier details;

6.3.3        if Goods, the product numbers and type and quantity of Goods in the consignment;

6.3.4        if Services, the category, type and quantity of Services performed;

6.3.5        any special instructions, handling and other requests; and

6.3.6        in the case of Goods, whether any packaging material is to be returned, in which case the Customer shall, after the Goods are unpacked, make them available for collection by the Supplier at the Supplier's expense.

6.4              Time is not of the essence in relation to the performance or delivery of the Deliverables. The Supplier shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are approximate only.

6.5              If the Supplier is unable to make delivery as a result of some act or inaction of the Customer all costs associated with such failed delivery together with all storage costs shall be payable by the Customer.

6.6              The Supplier shall not be liable for any delay in or failure of performance caused by:

6.6.1        the Customer's failure to: (i) make the Location available, (ii) prepare the Location as required for the Deliverables or (iii) provide the Supplier with adequate instructions for performance or delivery or otherwise relating to the Deliverables;

6.6.2        Force Majeure.

7                    Risk

Risk in the Goods shall pass to the Customer on Delivery.

8                    Title

8.1              Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.

8.2              Until title to the Goods has passed to the Customer, the Customer shall:

8.2.1        hold the Goods as bailee for the Supplier;

8.2.2        store the Goods separately from all other material in the Customer's possession;

8.2.3        take all reasonable care of the Goods and keep them in the condition in which they were delivered;

8.2.4        insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Supplier's interest on the policy;

8.2.5        ensure that the Goods are clearly identifiable as belonging to the Supplier;

8.2.6        not remove or alter any mark on or packaging of the Goods;

8.2.7        inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses  16.1.1 to 16.1.11 or 16.2; and

8.2.8        on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.

8.3              Notwithstanding clause 8.2, the Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 16.1.1 to 16.1.11 has occurred or is likely to occur.

8.4              If the Customer resells the Goods in accordance with clause 8.3, title to the Goods shall pass to the Customer immediately prior to the resale.

8.5              If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 16.1.1 to 16.1.11, the Supplier may:

8.5.1        require the Customer at the Customer's expense to re-deliver the Goods to the Supplier; and

8.5.2        if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.

9                    Warranty

9.1              The Supplier warrants that from delivery for the period set out in the Order Confirmation (the Warranty Period), the Deliverables shall:

9.1.1        conform in all material respects to any sample, their description and to the Specification;

9.1.2        be free from material defects in design, material and workmanship;

9.1.3        if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

9.1.4        if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13; and

 

9.2              The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.

9.3              The Supplier shall, at its option, correct, repair, remedy, re-perform or refund the Deliverables that do not comply with clause 9, provided that the Customer:

9.3.1        serves a written notice on Supplier not later than two Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;

9.3.2        such notice specifies that some or all of the Deliverables do not comply with clause 9.1 and identifying in sufficient detail the nature and extent of the defects; and

9.3.3        gives the Supplier a reasonable opportunity to examine the claim of the defective Deliverables.

9.4              The provisions of these Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.

9.5              Except as set out in this clause 9:

9.5.1        the Supplier gives no warranty and makes no representations in relation to the Deliverables; and

9.5.2        shall have no liability for their failure to comply with the warranty in clause 9.1,

and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.

10                Indemnity and insurance

10.1          The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, 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.

10.2          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.

11                Limitation of liability

11.1          The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.

11.2          Subject to clauses 11.5 and 11.6, the Supplier’s total liability shall not exceed an amount equal to the value of the order.

11.3          Subject to clauses 11.5 and 11.6, the Supplier shall not be liable for consequential, indirect or special losses.

11.4          Subject to clauses 11.5 and 11.6, the Supplier shall not be liable for any of the following (whether direct or indirect):

11.4.1    loss of profit;

11.4.2    loss or corruption of data;

11.4.3    loss of use;

11.4.4    loss of production;

11.4.5    loss of contract;

11.4.6    loss of opportunity;

11.4.7    loss of savings, discount or rebate (whether actual or anticipated);

11.4.8    harm to reputation or loss of goodwill.

11.5          The limitations of liability set out in clauses 11.2 to 11.4 shall not apply in respect of any indemnities given by either party under the Contract.

11.6          Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

11.6.1    death or personal injury caused by negligence;

11.6.2    fraud or fraudulent misrepresentation;

11.6.3    any other losses which cannot be excluded or limited by applicable law;

12                Intellectual property

12.1          The Supplier shall indemnify the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that use of the Deliverables infringes the Intellectual Property Rights of any third party (IPR Claim), provided that the Supplier shall have no such liability if the Customer:

12.1.1    does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;

12.1.2    makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;

12.1.3    does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;

12.1.4    does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;

12.1.5    does not, at the Supplier's request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer.

12.2          If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:

12.2.1    procure for the Customer the right to continue receiving the benefit of the relevant Deliverables; or

12.2.2    modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in material conformance to their Specification.

12.3          The Supplier's obligations under clause 12.1 shall not apply to Deliverables modified or used by the Customer other than in accordance with the Contract or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use.

13                Confidentiality and announcements

13.1          The Customer shall keep confidential all Confidential Information of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:

13.1.1    any information which was in the public domain at the date of the Contract;

13.1.2    any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

13.1.3    any information which is independently developed by the Customer without using information supplied by the Supplier; or

13.1.4    any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

13.2          This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.

13.3          The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

14                Processing of personal data

Definitions

14.1          In this clause 14:

14.1.1    Controller, Data Subject, Personal Data, Processor and processing shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including process, processed, processing, and processes shall be construed accordingly) and international organisation and Personal Data Breach shall have the respective meanings given to them in the GDPR;

14.1.2    Data Protection Laws means, as binding on either party or the Services:

(a)               the Directive 95/46/EC (Data Protection Directive) and/or Data Protection Act 1998 or the GDPR;

(b)               any laws which implement any such laws; and

(c)                any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;

14.1.3    GDPR means the General Data Protection Regulation (EU) 2016/679;

14.1.4    Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier's obligations under the Contract; and

14.1.5    Sub-Processor means any agent, subcontractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data.

 

Compliance with Data Protection Laws

14.2          The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws.

14.3          The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.

14.4          The Customer shall indemnify and keep indemnified the Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 14.

14.5          Clauses 14.6.2, 14.9 and 14.11 shall apply from when the GDPR applies on 25 May 2018, but not earlier.

Instructions

14.6          The Supplier shall:

14.6.1    only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with the Contract (and not otherwise unless alternative processing instructions are agreed between the parties in writing) except where otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and

14.6.2    if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.

Security

14.7          Taking into account the state of technical development and the nature of processing, the Supplier shall implement and maintain the technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

Sub-processing and personnel

14.8          The Supplier shall:

14.8.1    not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of the Customer;

14.8.2    prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 14 that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;

14.8.3    remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and

14.8.4    ensure that all persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

Assistance

14.9          The Supplier shall (at the Customer's cost):

14.9.1    assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR  (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Supplier; and

14.9.2    taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.

International transfers

14.10      The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom or to any international organisation without the prior written consent of the Customer.

Audits and processing

14.11      The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier's compliance with the obligations placed on it under this clause 14 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of oneaudit request in any 12 month period under this clause 14.11).

Deletion/return

14.12      On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to store such Protected Data. This clause 14 shall survive termination or expiry of the Contract.

15                Force Majeure

15.1          A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:

15.1.1    promptly notifies the other of the Force Majeure event and its expected duration; and

15.1.2    uses best endeavours to minimise the effects of that event.

15.2          If, due to Force Majeure, a party:

15.2.1    is or shall be unable to perform a material obligation; or

15.2.2    is delayed in or prevented from performing its obligations for a total of more than 30 days in any consecutive period of 60 days;

the other party may, within 30 days, terminate the Contract on immediate noticethe parties shall, within 30 days, renegotiate the Contract to achieve, as nearly as possible, the original commercial intent;

15.2.3  the inability of the Customer to pay the Supplier shall not be deemed a                             matter of Force Majeure in any circumstances.

16                Termination

16.1          The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:

16.1.1    stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

16.1.2    is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;

16.1.3    becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

16.1.4    has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

16.1.5    has a resolution passed for its winding up;

16.1.6    has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

16.1.7    is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within five days of that procedure being commenced;

16.1.8    has a freezing order made against it;

16.1.9    is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;

16.1.10is subject to any events or circumstances analogous to those in clauses 16.1.1 to 16.1.9 in any jurisdiction;

16.1.11takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 16.1.1 to 16.1.10 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.

16.2          If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 16, it shall immediately notify the Supplier in writing.

16.3          Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.

17                Dispute resolution

17.1          Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 17.

17.2          The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.

17.3          The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:

17.3.1    Within seven days of service of the notice, the Sales Manager of the parties shall meet to discuss the dispute and attempt to resolve it.

17.3.2    If the dispute has not been resolved within [seven] days of the first meeting of the Sales Manager, then the matter shall be referred to a Director (or persons of equivalent seniority). The Director (or equivalent) shall meet within seven days to discuss the dispute and attempt to resolve it.

17.4          The specific format for the resolution of the dispute under clause 17.3.1 and, if necessary, clause 17.3.2 shall be left to the reasonable discretion of the parties, but may include the preparation and submission of statements of fact or of position.

17.5          If the dispute has not been resolved within 14 days of the first meeting of the Directors (or equivalent) under clause 17.3.2 then the matter may be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.

17.6          Either party may issue formal legal proceedings or commence arbitration at any time whether or not the steps referred to in clauses 17.3 and 17.5 have been completed. OR Until the parties have completed the steps referred to in clauses 17.3 and 17.5, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.

18                Notices

18.1          Any notice or other communication given by a party under these Conditions shall:

18.1.1    be in writing and in English;

18.1.2    be signed by, or on behalf of, the party giving it (except for notices sent by email); and

18.1.3    be sent to the relevant party at the address set out in the Contract

18.2          Notices may be given, and are deemed received:

18.2.1    by hand: on receipt of a signature at the time of delivery;

18.2.2    by Royal Mail Recorded Signed For post: at 9.00 am on the [second] Business Day after posting; and

18.2.3    by email provided confirmation is sent by first class post: on receipt of a read receipt email from the correct address.

18.3          Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 18.1 and shall be effective:

18.3.1    on the date specified in the notice as being the date of such change; or

18.3.2    if no date is so specified, 5 Business Days after the notice is deemed to be received.

18.4          All references to time are to the local time at the place of deemed receipt.

18.5          This clause does not apply to notices given in legal proceedings or arbitration.

19                Cumulative remedies

The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.

20                Time

Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Customer’s obligations only.

21                Further assurance

The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

22                Entire agreement

22.1          The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

22.2          Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

22.3          Nothing in these Conditions purports to limit or exclude any liability for fraud.

23                Variation

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, the Supplier.

24                Assignment

24.1          The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part.

25                Set off

25.1          The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the Supplier has with the Customer.

25.2          The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

26                No partnership or agency

The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

27                Equitable relief

The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

28                Severance

28.1          If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

28.2          If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

29                Waiver

29.1          No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

29.2          No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.

29.3          A waiver of any term, provision, condition or breach of the Contract by the Supplier shall only be effective if given in writing and signed by the Supplier, and then only in the instance and for the purpose for which it is given.

30                Compliance with law

The Customer shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.

31                Conflicts within contract

If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail.

32                Costs and expenses

The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).

33                Third party rights

33.1          Except as expressly provided for in clause 33.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

33.2          Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

34                Governing law

The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

35                Jurisdiction

The parties irrevocably agree 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, its subject matter or formation (including non-contractual disputes or claims).

 

 

 

Part B

Additional Terms applicable if the Customer is a Consumer

The Consumer Rights Act 2015 says goods must be as described, fit for purpose and of satisfactory quality. During the expected lifespan of your product you're entitled to the following:

        up to 30 days: if your goods are faulty, you can get a refund

        up to six months: if they can't be repaired or replaced, then you're entitled to a full refund in most cases

        up to six years: if the goods do not last a reasonable length of time you may be entitled to some money back

You DON’T have a legal right to a refund or replacement just because you change your mind, BUT please ask us about our returns policy as we may still be able to help.

This is a summary of some of your key rights. For detailed information from Citizens Advice please visit www.adviceguide.org.uk or call 03454 04 05 06.

The information in this summary box summarises some of your key rights. It is not intended to replace the contract below which you should read carefully.

1                    Introduction

1.1              If you buy goods from us you agree to be legally bound by this contract.

2                    Information we give you

2.1              By law, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 say that we must give you certain key information before a legally binding contract between you and us is made (see the summary box below). We will give you this information in a clear and understandable way. Typically, we will do this in store before you buy the goods from us. Some of this information is likely to be obvious from the context. Some of this information is also set out in this contract, such as information on our complaint handling policy (see clause 10).

Information we will give you

We will give you information on:

the main characteristics of the goods you want to buy

who we are, where we are based and how you can contact us

the total price of the goods including any taxes (or where this cannot reasonably be worked out in advance, the manner in which we will work out the price)

all additional delivery charges (or where this cannot reasonably be worked out in advance, the fact that such additional charges may be payable)

the arrangements for payment, delivery, performance, and the time by which we will deliver the goods

our complaint handling policy

the fact that we are under a legal duty to supply goods that are in conformity with the contract

 

 

2.2              The key information we give you by law forms part of this contract (as though it is set out in full here).

2.3              If we have to change any key information once a legally binding contract between you and us is made, we can only do this if you agree to it.

3                    Ordering goods from us

3.1              Below, we set out how a legally binding contract between you and us is made:

3.1.1        Any quotation given by us before you make an order for goods is not a binding offer by us to supply such goods.

3.1.2        When you decide to place an order for goods with us, this is when you offer to buy such goods from us.

3.1.3        When you place your order with us, we will acknowledge it  or by email. This acknowledgement does not, however, mean that your order has been accepted.

3.1.4        We may contact you to say that we do not accept your order. If we do this, we will try to tell you promptly why we do not accept your order. This is typically for the following reasons:

(a)               the goods are unavailable

(b)               we cannot authorise your payment

(c)                you are not allowed to buy the goods from us

(d)               we are not allowed to sell the goods to you

(e)               you have ordered too many goods

(f)                 there has been a mistake on the pricing or description of the goods

3.1.5        We will only accept your order when we confirm this by email to you to confirm this (Confirmation E-mail). At this point:

(a)               a legally binding contract will be in place between you and us, and

(b)               we will dispatch the goods to you

3.2              If you are under the age of 18 you may not buy any goods from us.

4                    Delivery

4.1              If you want information on your delivery options and costs, speak with us  or visit our webpage [insert details such as ‘Delivering to you’] before you place your order.

4.2              We will let you know in the Confirmation E-mail (see clause 3.1.5) the estimated date for delivery of the goods.

4.3              If something happens which:

4.3.1        is outside of our control, and

4.3.2        affects the estimated date of delivery

we will let you have a revised estimated date for delivery of the goods.

4.4              Delivery of the goods will take place when we deliver them to the address that you gave to us.

4.5              Unless you and we agree otherwise, if we cannot deliver your goods within 30 days, we will:

4.5.1        let you know

4.5.2        cancel your order, and

4.5.3        give you a refund

4.6              If nobody is available to take delivery, please let us know.

4.7              You are responsible for the goods when delivery has taken place. In other words, the risk in the goods passes to you when you take possession of the goods.

4.8              We may deliver your goods in instalments. If you want to see whether your goods may be delivered in this way, please speak with us in store or check the Confirmation E-mail (see clause 3.1.5).

5                    Payment

5.1              We accept cash, cheques, and most credit cards and debit cards except for American Express.

5.2              All payments by credit card or debit card need to be authorised by the relevant card issuer.

5.3              The price of the goods:

5.3.1        is in pounds sterling (£)(GBP)

5.3.2        includes VAT at the applicable rate

5.3.3        does not include the cost of:

(a)               delivering the goods (if you want information on your delivery options and costs, see our website or speak with us before you place your order

 

6                    Nature of the goods

6.1              The Consumer Rights Act 2015 gives you certain legal rights (also known as ‘statutory rights’), for example, the goods:

6.1.1        are of satisfactory quality

6.1.2        are fit for purpose

6.1.3        match the description, sample or model, and

6.1.4        are installed properly (if we install any goods)

6.2              We must provide you with goods that comply with your legal rights.

6.3              The packaging of the goods may be different from that shown in store.

6.4              While we try to make sure that all weights, sizes and measurements set out in store are as accurate as possible, there may be a small tolerance of up to 5% in such weights, sizes and measurements.

6.5              Any goods sold:

6.5.1        at discount prices

6.5.2        as remnants

6.5.3        as substandard

will be identified and sold as such. Please check that they are of a satisfactory quality for their intended use.

6.6              If we can’t supply certain goods we may need to substitute them with alternative goods of equal or better standard and value. In this case:

6.6.1        we will let you know if we intend to do this but this may not always be possible

6.6.2        you can refuse to accept such substitutes, in which case we will offer you a refund or a replacement and let you know how long such an offer remains open for

7                    Faulty goods

7.1              Your legal rights under the Consumer Rights Act 2015 (also known as ‘statutory rights’), are set out at the top of this contract. They are a summary of your key rights. For more detailed information on your rights and what you should expect from us, please:

7.1.1        speak with us

7.1.2        visit our webpage:

7.1.3        contact us using the contact details at the top of this page, or

7.1.4        visit the Citizens Advice website www.adviceguide.org.uk or call 03454 04 05 06

7.2              Nothing in this contract affects your legal rights under the Consumer Rights Act 2015 (also known as ‘statutory rights’). You may also have other rights in law.

7.3              Please contact us using the contact details at the top of this page, if you want:

7.3.1        us to repair the goods

7.3.2        us to replace the goods

7.3.3        a price reduction

7.3.4        a refund

8                    End of the contract

8.1              If this contract is ended it will not affect our right to receive any money which you owe to us under this contract.

9                    Limit on our responsibility to you

9.1              Except for any legal responsibility that we cannot exclude in law (such as for death or personal injury), we are not legally responsible for any:

9.1.1        losses that:

(a)               were not foreseeable to you and us when the contract was formed

(b)               that were not caused by any breach on our part

9.1.2        business losses

9.1.3        losses to non-consumers

10                Disputes

10.1          We will try to resolve any disputes with you quickly and efficiently.

10.2          If you are unhappy with:

10.2.1    the goods

10.2.2    our service to you

10.2.3    any other matter

please contact us as soon as possible.

10.3          If you and we cannot resolve a dispute using our internal complaint handling procedure, we will:

10.3.1    let you know that we cannot settle the dispute with you, and

10.3.2    give you certain information required by law about an alternative dispute resolution provider

10.4          If you want to take court proceedings, the relevant courts in the part of the United Kingdom where you live will have non-exclusive jurisdiction in relation to this contract.

10.5          The laws of England and Wales will apply to this contract.

 

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