In these Conditions, the following definitions apply:
Business: includes a trade, craft or profession;
Business Day: means a day other than a Saturday, Sunday, public or bank holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in Clause 2.2.
Commercial Practice: means any act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a Trader, which is directly connected with the promotion, sale or supply of a product and/or service to or from Consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product and/or service; Conditions: means these terms and conditions, and any document(s) expressly mentioned therein, as amended from time-to-time in accordance with Clause 17.8.
Consumer: means any individual who in relation to a Commercial Practice is acting for purposes which are outside his Business
Contract: means the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: means the Consumer or Trader who purchases the Goods and/or Services from the Supplier.
Deliverables: means the deliverables (if any) set out in the Order.
Delivery Location: has the meaning set out in Clause 4.2.
Force Majeure Event: has the meaning given to it in Clause 16.1.
Goods: means the goods (or any part of them) set out in the Order.
Goods Specification: means any specification for the Goods, including any relevant plans or drawings that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, 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.
Order: means the Customer’s order for the supply of Goods and/or Services, as set out in the Supplier’s Quotation, and accepted in writing by the Customer.
Services: means the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: means the description or specification for the Services provided in writing by the Supplier to the Customer in the Order.
Supplier: means Low Carbon Products Limited a company registered in England and Wales with Company No. 06903105, whose registered office is at Unit 8C Top Land Country Business Park, Cragg Road, Mytholmroyd, West Yorkshire HX7 5RW.
Supplier Quotation: means the written statement setting out the cost and specification of the Goods and/or Services to be supplied to the Customer by the Supplier.
Trader: means any person who in relation to a Commercial Practice is acting for purposes relating to his Business, and anyone acting in the name of or on behalf of a Trader; Website: means the Supplier’s website hosted at www.britishrecycledplastic.co.uk.
In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) 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
(e) a reference to writing or written includes e-mail.
2. BASIS OF CONTRACT
2.1 The Supplier Quotation constitutes an offer by the Supplier to supply Goods and/or Services in accordance with these Conditions. Any Supplier Quotation given by the Supplier shall only be valid for a period of 28 Business Days from its date of issue.
2.2 The Supplier Quotation shall be deemed to be accepted by whichever is the earlier of:
(a) the Customer’s written acceptance;
(b) delivery of the Goods;
(c) provision of the Services; or
(d) the Supplier’s invoice
at which point and on which date the Contract shall come into existence (“the Commencement Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty 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 of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues, brochures or on the Website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 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 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Supplier’s catalogue and/or the Website as modified by any applicable 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 reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Goods Specification. This Clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the specification of the Goods and/or Services if required by any applicable statutory or regulatory requirements.
4. DELIVERY OF GOODS
4.1 The Supplier shall use reasonable endeavours to ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by installments, the outstanding balance of Goods remaining to be delivered.
4.2 The Supplier shall deliver or shall procure the delivery of the Goods to a location in the United Kingdom as set out in the Order or such other location as the parties may agree (“the Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival 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 that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to accept or take delivery of the Goods within 14 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 14 Business Day following the day on which the Supplier notified the Customer that the Goods were ready;
(b) the Supplier shall store or shall procure the storage of the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 28 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
Clauses 4.9 TO 4.11 only apply if the Customer is a Consumer.
4.9 If the Supplier misses the delivery deadline for any Goods, by 14 days, then the Consumer may cancel his/her Order straight away if any of the following apply:
(a) The Supplier has refused to deliver the Goods;
(b) Delivery within the delivery deadline was essential (taking into account all the relevant circumstances); or
(c) The Consumer told the Supplier prior to the date of the Supplier’s Quotation, that delivery within the delivery deadline was essential.
4.10 If the Consumer does not wish to cancel his/her Order straight away, or does not have the right to do so under Clause 4.10, the Consumer can give the Supplier a new deadline for delivery, which must be reasonable, and the Consumer can cancel his/her Order if the Supplier does not meet the new deadline.
4.11 If the Consumer does choose to cancel his/her Order for late delivery under Clause 4.10 or Clause 4.11, the Consumer can do so for just some of the Goods or all of them, unless splitting them up would significantly reduce their value. If the Goods have been delivered to the Consumer, the Consumer will have to return them to the Supplier or allow the Supplier to collect them, and the Supplier pay the costs of this. After the Consumer cancels his/her Order the Supplier will refund any sums the Consumer has paid to the Supplier for the cancelled Goods and their delivery.
5. RIGHT OF RETURN AND REFUND – CONSUMERS
THIS CLAUSE 5 ONLY APPLIES IF THE CUSTOMER IS A CONSUMER
5.1 If you are a Consumer, you have a legal right to cancel a Contract during the period set out below in Clause 5.3. This means that during the relevant period if you change your mind or decide for any other reason that you do not want to receive or keep any Goods, you can notify the Supplier of your decision to cancel the Contract and receive a refund. Advice about your legal right to cancel the Contract is available from your local Citizens’ Advice Bureau or Trading Standards Office.
5.2 However, this cancellation right does not apply in the case of any Goods which become mixed inseparably with other items after their delivery.
To cancel a Contract, you just need to let the Supplier know that you have decided to cancel. The easiest way to do this is to e-mail the Supplier at: [email protected] or contact the Supplier’s Customer Services Team by telephone on 01422 885 761 or by post to Low Carbon Products Limited, Unit 8C Top Land Country Business Park, Cragg Road, Mytholmroyd, West Yorkshire HX7 5RW. If you are e-mailing us or writing to us please include details of your Order to help us to identify it. If you send us your cancellation notice by e-mail or by post, then your cancellation is effective from the date you send us the e-mail or post the letter to us. For example, you will have given us notice in time as long as you get your letter into the last post on the last day of the cancellation period or e-mail us before midnight on that day.
5.5 If you cancel your Contract the Supplier will:
(a) refund you the price you paid for the Goods. However, please note the Supplier is permitted by law to reduce your refund to reflect any reduction in the value of the goods, if this has been caused by your handling them in a way which would not be permitted in a shop. If the Supplier refunds you the price paid before the Supplier is able to inspect the goods and later discover you have handled them in an unacceptable way, you must pay the Supplier an appropriate amount.
(b) refund any delivery costs you have paid, although, as permitted by law, the maximum refund will be the costs of delivery by the least expensive delivery method the Supplier offers (provided that this is a common and generally acceptable method). For example, if the Supplier offers delivery of Goods within [3-5] days at one cost but you choose to have the Goods delivered within 24 hours at a higher cost, then the Supplier will only refund what you would have paid for the cheaper delivery option.
(c) make any refunds due to you as soon as possible and in any event within the deadlines indicated below:
(i) if you have received the Goods and the Supplier has not offered to collect them from you: 14 days after the day on which the Supplier receives the Goods back from you or, if earlier, the day on which you provide the Supplier with evidence that you have sent the Goods back to the Supplier. For information about how to return a Goods to us, see Clause 5.7;
(ii) if you have not received the Goods or you have received it and the Supplier has offered to collect them from you: 14 days after you inform the Supplier of your decision to cancel the Contract.
5.6 If you have returned the Goods to the Supplier under this Clause 5 because they are faulty or mis-described, the Supplier will refund the price of the Goods in full, together with any applicable delivery charges, and any reasonable costs you incur in returning the item to the Supplier.
5.7 If Goods have been delivered to you before you decide to cancel your Contract:
(a) then you must return them to the Supplier or to the Supplier’s supplier without undue delay and in any event not later than 14 days after the day on which you let the Supplier know that you wish to cancel the Contract. You can either send them back, or hand them to our authorised carrier. The return address will be supplied at the time of delivery of the Goods. If the Supplier has offered to collect the Goods from you, the Supplier will collect or will procure the collection of the Goods from the address to which they were delivered. The Supplier will contact you to arrange a suitable time for collection;
(b) unless the Goods are faulty or not as described (in this case, see Clause 5.6), you will be responsible for the cost of returning the Goods to the Supplier. If the Goods cannot be returned by post, the Supplier estimates that if you use the carrier which delivered the Goods to you, these costs should not exceed the sums the Supplier charged you for delivery. If the Supplier has offered to collect the Goods from you, the Supplier will charge you the direct cost to the Supplier of collection.
5.8 Because you are a Consumer, the Supplier is under a legal duty to supply Goods that are in conformity with the Contract. As a Consumer, you have legal rights in relation to Goods that are faulty or not as described. These legal rights are not affected by your right of return and refund in this Clause 5 or anything else in these Conditions. Advice about your legal rights is available from your local Citizens’ Advice Bureau or Trading Standards office.
6. QUALITY OF GOODS
6.1 The Supplier warrants that on delivery, and for a period of 3 months from the date of delivery (“the Warranty Period”), the Goods shall:
(a) conform in all material respects with their description as set out in the Order, and any applicable Goods Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
6.2 Subject to Clause 6.3, if:
(a) the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranties set out in Clause 6.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranties in Clause 6.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with Clause 6.2;
(b) the defect arises because the Customer failed to follow the Supplier’s or the manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; and/or
(f) the Goods differ from their description as set out in the Order and/or the Goods Specification (if any) as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.4 EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED WITHIN THIS CLAUSE 6 THE SUPPLIER DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, CONDITIONS AND STIPULATIONS WHETHER EXPRESSED OR IMPLIED, STATUTORY, CUSTOMARY OR OTHERWISE TO THE FULLEST EXTENT PERMITTED BY LAW, AND THE REMEDIES CONTAINED WITHIN THIS CLAUSE 6 ARE IN LIEU OF ALL OBLIGATIONS AND LIABILITIES ON THE PART OF THE SUPPLIER FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY GOODS AND/OR SERVICES SUPPLIED BY THE SUPPLIER IN PARTICULAR, EACH TRADER WARRANTS THAT IT HAS ASSESSED FOR ITSELF THE SUITABILITY OF THE GOODS AND/OR SERVICES FOR ITS REQUIREMENTS AND ACCEPT AND AGREE THAT THE SUPPLIER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE GOODS AND/OR SERVICES WILL BE FIT FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT MADE KNOWN TO THE SUPPLIER) OR THAT THE USE OF THE GOODS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY ERRORS FOUND IN THE GOODS CAN BE CORRECTED. THE TRADER ACKNOWLEDGES THAT THE EXISTENCE OF ERRORS IN THE GOODS WILL NOT CONSTITUTE A BREACH OF THESE CONDITIONS.
6.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under Clause 6.2.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other Goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in Clause 7.4.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in Clause 15.1(b) to Clause 15.1(m); and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time-to-time.
7.4 Subject to Clause 7.5, the Customer may resell or use the Goods in the ordinary course of its Business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Clause 15.1(b) to Clause 15.1(m), then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell Goods or use them in the ordinary course of its Business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. SUPPLY OF SERVICES
8.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
8.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Supplier’s quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 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 in any such event.
8.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
9. CUSTOMER’S OBLIGATIONS
9.1 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 Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; and/or
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start.
9.2 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 (“a 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 9.2; 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.
10. CHARGES AND PAYMENT
10.1 The price for Goods and/or Services shall be the price set out in the Supplier’s Quotation. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
10.2 The charges for Services shall be on a time and materials basis:
(a) the charges shall be as set out in the Supplier’s Quotation; and
(b) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to,
travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
10.3 The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
10.4 In respect of Goods and/or Services, the Supplier shall invoice the Customer on a Pro Forma basis prior to the date of despatch of and Goods or performance of any Service.
10.5 The Customer shall pay each proforma invoice submitted by the Supplier:
(a) immediately on-demand; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier;
but in any event, payment shall be made prior to the despatch of any Goods or the performance of any Services, and time for payment shall be of the essence of the Contract.
10.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time-to-time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
10.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 5% per annum above Lloyds Bank plc’s base rate from time-to-time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
10.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. 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.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
11.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
A party (“the Receiving Party) 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 the Receiving Party by the other party (“the Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this Clause 11 as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This Clause 12 shall survive termination of the Contract.
13. LIMITATION OF LIABILITY – TRADERS
13.1 THIS CLAUSE 13 CONTAINS IMPORTANT PROVISIONS WHICH ACT TO SET AND PLACE LIMITS ON THE SUPPLIER’S LIABILITY UNDER THIS AGREEMENT TO A TRADER. IN SOME CASES, THE SUPPLIER ALSO COMPLETELY EXCLUDES CERTAIN TYPES OF LIABILITY. BY ENTERING INTO A CONTRACT A TRADER AGREES TO BE BOUND BY THESE CONDITIONS AND EXPRESSLY AGREES TO THE FOLLOWING LIMITATIONS AND EXCLUSIONS OF THE SUPPLIER’S LIABILITY TO THE MAXIMUM EXTENT THEY ARE PERMITTED BY APPLICABLE LAW.
13.2 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 s.2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and/or
(d) breach of the terms implied by s.12 of the Sale of Goods Act 1979 (title and quiet possession).
13.3 Except as otherwise expressly stated in these Conditions, Clauses 13.4 to 13.5 of these Conditions set out the Supplier’s entire liability (including liability for the acts or omissions of its employees, agents or sub-contractors) to a Trader in respect of:
(a) any breach of its contractual obligations arising under or in connection with the Contract; and
(b) any representation, statement, negligence, breach of statutory duty or other tortious act or omission arising under or in connection with the Contract.
13.4 Subject to the maximum extent permitted by law, the Supplier will not be liable to any Trader for any claim in respect of:
(a) pure economic loss including:
(i) profits (whether direct or indirect);
(iii) anticipated savings;
(v) business opportunities;
(vi) wasted or lost management or employees’ time;
(vii) (except as expressly provided in this Agreement) loss or corruption of data;
(b) any special, consequential, punitive or indirect loss, whether or not the Supplier has been advised of the likelihood of such loss.
13.5 Subject always to Clause 13.2 above, the Supplier’s total liability to a Trader in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the relevant Supplier’s Quotation.
13.6 The terms implied by ss.13 to 15 of the Sale of Goods Act 1979 and the terms implied by ss.3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.7 This Clause 13 shall survive termination of the Contract.
14. LIMITATION OF LIABILITY – CONSUMERS
14.1 THIS CLAUSE 13 CONTAINS IMPORTANT PROVISIONS WHICH ACT TO SET AND PLACE LIMITS ON THE SUPPLIER’S LIABILITY UNDER THIS AGREEMENT TO A CONSUMER. IN SOME CASES, THE SUPPLIER ALSO COMPLETELY EXCLUDES CERTAIN TYPES OF LIABILITY. BY ENTERING INTO A CONTRACT, A CONSUMER AGREES TO BE BOUND BY THESE CONDITIONS AND EXPRESSLY AGREES TO THE FOLLOWING LIMITATIONS AND EXCLUSIONS OF THE SUPPLIER’S LIABILITY TO THE MAXIMUM EXTENT THEY ARE PERMITTED BY APPLICABLE LAW.
14.2 If the Supplier fails to comply with these Conditions, the Supplier is responsible for loss or damage a Consumer suffers that is a foreseeable result of our breach of these Conditions or our negligence, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of the Supplier’s breach or if it was contemplated by a Consumer and the Supplier at the time the parties entered into the Contract.
14.3 The Supplier only supplies the Goods for domestic and private use. You, as a consumer, agree not to use the Goods for any commercial, business or resale purposes, and the Supplier has no liability to any Consumer for any loss of profit, loss of business, business interruption, or loss of business opportunity.
14.4 The Supplier does not in any way exclude or limit 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) any breach of the terms implied by s.12 of the Sale of Goods Act 1979 (title and quiet possession);
(d) any breach of the terms implied by s.2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(e) any breach of the terms implied by ss.13 to 15 of the Sale of Goods Act 1979 (description, satisfactory quality, fitness for purpose and samples);
(f) any breach of the terms implied by ss.3 to 5 of the Supply of Goods and Services Act 1982 (description, satisfactory quality, fitness for purpose and samples;
(g) defective products under the Consumer Protection Act 1987.
15.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of s.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 s.268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party 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 (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) 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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party 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;
(g) 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 other party (being a company);
(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 15.1(b) to Clause 15.1(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (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.
15.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
15.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in Clause 15.1(b) to Clause 15.1(m), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15.4 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 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 of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises
and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(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; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
16. FORCE MAJEURE
16.1 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 (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
16.2 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.
16.3 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.
17.1 Assignment and other Dealings.
(a) The Supplier may at any time assign, transfer, mortgage, 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, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2 Communication & Notices between the Parties.
(a) Contacting the Supplier if you are a Consumer
(i) If you are a Consumer and wish to cancel a Contract in accordance with your legal rights to do so, as set out in Clause 5, you just need to let us know that you have decided to cancel by contacting the Supplier by email: [email protected]. If you are emailing the Supplier or writing to the Supplier please include details of your Order to help the Supplier to identify it. If you send the Supplier your cancellation notice by e-mail or by post, then your cancellation is effective from the date you send the Supplier the e-mail or post the letter.
(ii) If you wish to contact the Supplier for any other reason, including because you have any complaints, you can contact the Supplier by telephoning our Customer Service Team on 01422 885 761 or by e-mailing the Supplier at [email protected].
(iii) If the Supplier has to contact you or give you notice in writing, the Supplier will do so by e-mail or by pre-paid post to the address you provide to us in your Order.
(b) Contacting the Supplier if you are a Trader
(i) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Clause 17.2, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, or e-mail.
(ii) A notice or other communication shall be deemed to have been received:
(A) if delivered personally, when left at the address referred to in Clause 17.2(b)(i);
(B) if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting;
(C) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or,
(D) if sent by e-mail, one Business Day after transmission.
(c) The provisions of this Clause 17.2 shall not apply to the service of any proceedings or other documents in any legal action
17.3 Data Protection.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If [one party gives notice to the other of the possibility that] any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
A waiver of any right under the Contract or law 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 prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.6 No Partnership or Agency.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
17.7 Third parties.
A person who is not a party to the Contract shall not have any rights to enforce its terms.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
17.9 Governing Law & Jurisdiction – Consumer
Please note that these Conditions are governed by English law. This means that a Contract for the purchase of Goods and/or Services from the Supplier, and any dispute or claim arising out of or in connection with it, will be governed by English law. Any Consumer and the Supplier both agree that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are a Consumer resident in Northern Ireland you may also bring proceedings in Northern Ireland, and if you are a Consumer resident in Scotland, you may also bring proceedings in Scotland.
17.10 Governing Law & Jurisdiction – Trader
This Agreement 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.
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 this Contract or its subject matter or formation (including non-contractual disputes or claims).