The Customer’s attention is particularly drawn to the provisions of clause 12.
1. INTERPRETATION
1.1 Definitions
In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday). Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person, company or firm who purchases the Goods and/or Services from the Supplier.
Customer Items: all pieces of jewellery, objects including patterns and waxes and accessories provided to the Supplier by the Customer.
Customer Materials: all precious and non-precious metals including gold and platinum, precious and semi-precious stones, gems and pearls or other items which the Customer provides to the Supplier.
Delivery Location: has the meaning set out in clause 4.2.
Additional Charge: charge levied for any additional necessary services provided by the Supplier in producing the Goods (including moulding, spruing and small component); and any other administrative or set up charges and fashion charges;
Force Majeure Event: has the meaning given to it in clause 15.1(a).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including the design, any relevant plans or drawings, that are agreed by the Customer and the Supplier and attached to the Order.
Intellectual Property Rights: all copyright and related rights, rights in design, models, patterns, moulds and samples, CAD design files, CAD design renderings and CAD cam waxes and models, Supplier modifications and amendments to Customer’s designs, trade marks, service marks, trade, business and domain names, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order, or the Customer’s written or verbal acceptance of the Supplier’s quotation / estimate, as the case may be.
Services: casting in precious and non-precious metals, design, CAD design, rapid prototyping, manufacturing, manufacturing services, assembly, finishing services agreed to be supplied to the Customer
Supplier: Design Build Cast Ltd registered in England and Wales with company number 07064338.
Supplier Catalogue: any sales and marketing material produced by the Supplier under its name including the material on the website of the Supplier.
Supplier Materials: all precious and non-precious metals including gold and platinum, precious and semi-precious stones, gems and pearls or other items supplied by the Supplier to the Customer.
Supplier Products: all pieces of jewellery, objects and accessories and designs provided by the Supplier from time to time, including sample pieces and consignment pieces supplied to the Customer which are not Goods.
1.2 Construction.
In these Conditions, the following rules apply:
(a) 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; and
(b) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. The Customer is deemed to accept these Conditions when it places an Order.
2.2 The Order shall only be deemed to be accepted when the Supplier confirms orally or in writing or in the absence of such confirmation commences work in relation to the Order at which point and on which date the Contract shall come into existence.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions (including all weights and sizes) of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation / estimate given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue. Prices quoted prior to invoice are estimate only and may change due to fluctuation of metal prices and variations in weight of any components and the Goods.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. GOODS
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
3.4 The Supplier reserves the right to modify the Goods Specification if it is impracticable or impossible to follow the Goods Specification in the design and manufacture of the Goods.
3.5 A further fee will be charged for additional or replacement moulds.
3.6 The Supplier accepts no responsibility for any Customer Materials provided by the Customer.
3.7 Customer Materials shall be provided with a delivery note with full details of the materials supplied.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that delivery of the Goods is accompanied by a delivery note or invoice which shows relevant Customer and Supplier reference numbers, the type and quantity of the Goods.
4.2 The following delivery methods will be used to deliver the Goods to the Customer. Either:
(a) the Customer shall collect the Goods from the Supplier’s premises or such other location as may be advised by the Supplier before delivery (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready; or
(b) the Supplier at the Customer’s request shall deliver the Goods via post, courier or FedEx at the Customer’s risk to a location agreed between the parties at any time after the Supplier notifies the Customer that the Goods are ready in which case that location will then be the Delivery Location.
4.3 Delivery of the Goods shall be completed on collection of or delivery of the Goods to the Customer at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions, items or materials that are relevant to the supply of the Goods.
4.5 If the Customer fails to accept or take delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 4th Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses including insurance in storing the Goods.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.7 The Customer must inspect the Goods on delivery and must give notice in writing within 5 Business Days of delivery of any damage to the Goods or non-compliance with the Goods Specification or Order after which:
a) the Supplier must be given a reasonable opportunity to examine the Goods;
b) the Customer (if requested to do so by the Supplier) must return the Goods to the Supplier’s place of business at its cost within 10 days of such request unless otherwise agreed by the parties; and
c) the Supplier shall, at its option, repair or replace the damaged or non- compliant Goods, or refund the price of the Goods.
5. QUALITY OF GOODS
5.1 The Supplier warrants that on delivery the Goods shall:
a) be of satisfactory quality within the meaning of the Sales of Goods Act 1979; and
b) be reasonably fit for purpose.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing within 5 Business Days of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) return such Goods to the Supplier’s place of business at its cost within 10 days of such request unless otherwise agreed by the partiesthe Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following the Goods Specification supplied by the Customer;
(d) the Customer alters or repairs the Goods after the delivery without first consulting the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal conditions;
(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards;
(g) the Goods differ from the Goods Specification as a result of changes made where it was impracticable or impossible for the Supplier to follow the Goods Specification.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.2.
5.6 For the avoidance of doubt, the warranty set out in clause 5.1 only applies to Goods which are manufactured or Goods which are designed and manufactured by the Supplier.
5.7 Where the Customer provides a CAD file for prototyping and casting the Goods will be produced in accordance with the CAD file supplied. The Supplier shall not be responsible for ensuring that such Goods are fit for any purpose.
5.8 The Supplier accepts no liability with regard to fitness for purpose for Goods manufactured to designs provided by the Customer.
5.9 The Supplier accepts no liability for any defects to Goods or fitness for purpose of Goods where the casting was produced from a wax supplied by the Customer.
5.10 It is mutually acknowledged that there is an element of risk in producing Goods using the casting process. Due care will be taken by the Supplier of all waxes supplied by the Customer but due to the delicate nature of wax breakages may occur. The Supplier shall inform the Customer of any breakages as soon as practicably possible. The Supplier shall not be responsible for replacing any waxes with breakages.
5.11 Credits for returned castings which are not faulty will be dealt with on an individual basis at the Supplier’s sole discretion.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 The risk in the Supplier Products shall pass to the Customer on delivery of the Supplier Products to the Customer.
6.3 Title to the Goods and (if being purchased by the Customer in accordance with clause 10.4) any Supplier Products shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods;
(b) the relevant Supplier Products and
(c) any other goods that the Supplier has supplied to the Customer.
6.4 Until title to the Goods and Supplier Products has passed to the Customer, the Customer shall:
(a) hold the Goods and Supplier Products on a fiduciary basis as the Supplier’s bailee;
(b) store the Goods and Supplier Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods and Supplier Products;
(d) maintain the Goods and Supplier Products in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.1(b)(i) – (xi) ; and
(f) give the Supplier such information relating to the Goods and Supplier Products as the Supplier may require from time to time,
but the Customer may resell or use the Goods and Supplier Products in the ordinary course of its business.
6.5 If before title to the Goods and Supplier Products passes to the Customer the Customer becomes subject to any of the events listed in clause 13.1(b) (i) – (xi), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods and Supplier Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and Supplier Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods and Supplier Products are stored in order to recover them.
7. SUPPLY OF SERVICES
7.1 The Supplier shall provide the Services to the Customer in accordance with the terms of these Conditions.
7.2 The Supplier shall use all reasonable endeavours to meet any estimated performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer where any such changes are material to the Services.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
7.5 Where manufacturing services are provided by the Supplier as part of the Services, the Customer may inspect the status of the manufacturing during normal business hours at the Supplier’s premises following prior agreement in writing with the Supplier.
7.6 Where repair services are provided by the Supplier in relation to Customer Items the Supplier does not guarantee the quality of the original workmanship and no warranty is given by the Supplier in respect of such original workmanship. All repair services are provided in good faith and at the Customers risk.
8. CUSTOMER’S OBLIGATIONS AND UNDERTAKINGS
8.1 The Customer shall:
(a) ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Goods and/or Services;
(c) provide the Supplier with such information as the Supplier may reasonably require to supply the Goods and/or Services, and ensure that such information is accurate in all material respects;
(d) where agreed between the parties provide the Supplier with such materials at such times that the Supplier requests in order to enable the Supplier to manufacture and supply the Goods which are being manufactured to the Goods Specification; and
(e) ensure that all Customer Materials and Customer Items provided to the Supplier are adequately insured at all times against all risks (including without limitation the risks during casting, manufacturing, assembly, finishing, repairing, transit and transportation) for their full price.
8.2 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
8.3 The Customer undertakes that during the course of dealing with the Supplier and for 6 months after termination of these Conditions the Customer shall not offer to employ or engage or otherwise endeavour to entice away from the Supplier any employee of the Supplier.
9. CHARGES AND PAYMENT
9.1 The price for Goods, Services and Additional Charges shall be the price as set out in the invoice rendered by the Supplier before delivery of the Goods or on completion of the Services.
9.2 The Supplier may request that the Customer shall pay a deposit at the time of the Order. Any such deposit shall be off-set against the final invoice rendered for the Goods, Services and Additional Charges.
9.3 The price of the Goods is exclusive of all costs and charges of packaging, insurance and transport of the Goods (if applicable), which shall be paid by the Customer when it pays for the Goods and Services.
9.4 The Supplier reserves the right to increase the price of the Goods, to reflect any increase in the cost of the Goods to the Supplier which are due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials (including the price of precious metals which is based on the prevailing metal markets at the date of the invoice) and other manufacturing costs); or
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any changes or amendments requested by the Customer to their patterns or CAD files including without limitation changes to the size, shape or stone settings; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods; or
(iv) any increase in the cost of labour, materials and other manufacturing costs over those included in the price for the Goods quoted / estimated by the Supplier and which could not reasonably have been anticipated by the Supplier at the time of such quote or estimate and which are necessary to complete the Goods to the standard expected by the Customer.
9.5 The Supplier reserves the right to increase the charges for the Services and/or Additional Charges to reflect any increase in the cost of labour, materials and other manufacturing costs over those included in the price for the Services and/or Additional Charges quoted/estimated by the Supplier and which could not reasonably have been anticipated by the Supplier at the time of such quote or estimate and which are necessary to complete the Order to the standard expected by the Customer.
9.6 In respect of Goods, the Supplier shall invoice the Customer before delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services.
9.7 If the Customer cancels an Order for Services and/or Goods and the Supplier has expended time and used materials in providing the Services and/or Goods, the Supplier shall invoice the Customer upon the cancellation in respect of such time, materials used and/or any Additional Services provided.
9.8 The Customer shall pay each invoice submitted by the Supplier, unless otherwise agreed in writing, by:
(a) where there is no agreed credit limit in advance of the date of delivery/collection of the Goods or Services;
(b) in the case of agreed credit limit, within 21 days of the date of the invoice;
in all cases in full and in cleared funds, either by:
(i) cash;
(ii) bank transfer to a bank account nominated in writing by the Supplier;
(iii) credit card (Mastercard or Visa) in which case the Supplier reserves the right to charge a handling fee; or
(iv) Debit card (Switch).
Time for payment shall be of the essence of the Contract.
9.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). The Customer shall pay all chargeable VAT which is invoiced by the Supplier.
9.10 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 3 per cent per annum above the then current Coutt’s base lending rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
9.11 If payment is not made in full by the Due Date, the Supplier reserves the right to do any of the following:9.11.1. withdraw the Customer’s credit account; 9.11.2. reduce the Customer’s credit limit; 9.11.3. suspend or cancel future deliveries.
9.12 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the Order and/or Goods and/or Services provided by the Supplier including any modifications, amendments, enhancements and design features made by the Supplier shall be owned by the Supplier absolutely PROVIDED THAT where the design for any Goods pursuant to an Order is created by the Supplier specifically for the Customer pursuant to such Order the Supplier agrees that it will not supply Goods to that design to any person, company or firm other than the Customer unless the Supplier has terminated the Contract in accordance with clause 13.1. Subject as aforesaid all Intellectual Property Rights in (if any) Customer Items and Customer Materials shall remain the property of the Customer.
10.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Goods and/or Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Customer obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to such rights. The Customer should ensure that all required licences are obtained from the relevant licensor prior to placing an Order.
10.3 The Customer shall indemnify the Supplier against any action made against the Supplier or any loss incurred by the Supplier as a result of the Customer failing to obtain the required licences under clause 10.2.
10.4 All Supplier Products are and shall remain the exclusive property of the Supplier unless the Supplier has expressly agreed in writing that they are to be sold to the Customer in accordance with the terms of the Contract when they will be regarded as part of the “Goods” for the purposes of the Contract. Where the Supplier has agreed to lend any Supplier Products to the Customer the provisions of clause 6.4 shall apply to such Supplier Products save that the Customer shall not be permitted to sell the Supplier Products and shall forthwith return the same to the Supplier following its first demand in writing.
10.5 All moulds and CAD files remain the property of the Supplier and will be retained by the Supplier for use on the Customers Orders until the Customer requests that they should be destroyed.
10.6 The copyright in the Supplier Catalogues shall at all times remain in the ownership of the Supplier. The Customer shall not copy, reproduce or modify the Supplier Catalogues or any part of the Supplier Catalogues without the prior written consent of the Supplier.
11. CONFIDENTIALITY
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the Supplier, its employees, agents or subcontractors, and any other confidential information concerning the Supplier’s business or its products or its services which the Customer may obtain. The Customer shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer. This clause 11 shall survive termination of the Contract.
12. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1:
(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors); and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed £100,000 (One hundred thousand Pounds).
12.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.4 This clause 12 shall survive termination of the Contract.
13. TERMINATION
13.1 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer fails to pay any amount due under this Contract on the due date for payment; or
(b) the Customer becomes subject to any of the following events, or the Supplier reasonably believes that the Customer is about to become subject to any of them:
(i) the Customer is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(ii) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than in the case of a solvent amalgamation or solvent reconstruction;
(iii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than in the case of a solvent amalgamation or solvent reconstruction;
(iv) the Customer (being an individual) is the subject of a bankruptcy petition or order;
(v) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(vi) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer (being a company);
(vi) a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
(viii) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the other party;
(ix) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1 (b) (i –xi) (inclusive);
(x) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(xi) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
14. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all Goods and Supplier Products which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping including ensuring that they are adequately insured against all risks for their full price and the Customer will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect;
(e) the Customer shall return to the Supplier all designs, models, samples and other items owned by the Supplier, and any Supplier products, in its possession or control; and
(f) the Customer must return all confidential information of the Supplier to the Supplier as soon as is practically possible.
15. GENERAL
15.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes, act of God, war, riot, civil commotion, malicious damage fire, flood, storm or default of suppliers or subcontractors.
(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 4 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
15.2 Assignment and subcontracting:
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.3 Notices:
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, at its registered office (if a company) or (in any other case) its principal place of business.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post at 9.00 am on the second Business Day after posting.
(c) This clause 15.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
15.4 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
15.5 Severance:If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable:
(a) that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected;
(b) If the provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.6 No Partnership. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.8 Variation: The Supplier reserves the right to vary these Conditions from time to time, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed by both parties. The version of the Conditions that will apply to your Order will be those on the Supplier’s website at the time you place your Order.
15.9 Governing law and jurisdiction: This 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
