Terms & Conditions
STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES
K ACCESS UK LTD
The Customer’s attention is particularly drawn to the provisions of clause 12 (Limitation of liability).
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Commencement Date: has the meaning given in clause 2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 8 together with the terms of any Specification Document.
Contract: the contract between the Supplier and the Customer for the supply of Goods or Services or Goods and Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods or Services or Goods and Services from the Supplier.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
Delivery Location: has the meaning given in clause 2.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Specification Document: any description or specification for the Goods and/or Services, including any relevant plans or drawings, that is agreed [in writing] by the Customer and the Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, [rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how [and trade secrets), 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.
Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and [reasonable] professional costs and expenses).
Order: the Customer’s order for the supply of Goods or Services or Goods and Services, as set out in the Customer’s purchase order form or, the Customer’s written acceptance of the Supplier’s quotation, statement of work or Specification Document as the case may be.
Services: the services, including any Deliverables, supplied by the Supplier to the Customer as set out in the Specification Document.
Supplier: K ACCESS UK Ltd t/a KATT Safety, 100-200 The Quadrant, Ash Ridge Road, Bradley Stoke, Bristol BS32 4QA. Reg No. 7024876
Supplier Materials: has the meaning given in clause 1(h).
1.1 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its [personal representatives,] successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services from the Supplier in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order, at which point and on which date the Contract shall come into existence (Commencement Date).
1.1 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 or brochures, sales pamphlet or other sales or marketing literature are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.
3. Supply of Goods
3.1 The Goods are described in the Specification Document.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification Document supplied by the Customer, the Customer shall indemnify the Supplier against all Losses incurred by the Supplier as a result of 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 Specification Document or from the Customer’s breach of any of its obligations under this Agreement. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification Document if required by any applicable law or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery of Goods
4.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. Delivery of the Goods is completed on the completion of unloading of the Goods at the Delivery Location.
4.2 Where the Customer is collecting the Goods, it shall collect the Goods from the Supplier’s premises as set out in the Order or such other location as the parties may agree before delivery within three Business Days of the Supplier notifying the Customer that the Goods are ready. Delivery of the Goods is completed on the completion of loading of the Goods.
4.3 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.
4.4 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 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 Customer fails to accept delivery of the Goods within 30 Business Days of the Supplier notifying the Customer that the Goods are ready for delivery, 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 thirtieth 30th 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 actual delivery takes place, and charge the Customer for all related costs and expenses (including storage and insurance).
4.6 If 35 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual 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.
4.7 All claims for shortages of Goods delivered are to be made within 3 working days.
4.8 Subject to clause 4.9, standard stock items maybe returned within 30 days of purchase, providing they are in resaleable condition and a copy of the delivery /collection note is supplied. Returns are at the Customer expense. 20% re-stocking charges will apply.
4.9 Non-returnable items include any non-standard items, bespoke items, special items, items manufactured to the Customers specification, items where design work has commenced, and/or items which involve cutting, fabrication, assembly, polyester powder-coating etc.
4.10 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.
5. Quality of Goods
5.1 The Supplier warrants that on delivery the Goods shall:
(a) conform in all material respects with the Specification Document;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to clause 5.3, if:
(a) within a reasonable time after delivery and no longer than 14 days, the Customer gives notice in writing to the Supplier that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in clause 5.1, repair or replace the defective Goods, or refund the price of the defective Goods in full and shall refund any reasonable agreed costs of returning the defective Goods to the Supplier paid by the Customer.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out 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, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by or on behalf of 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 storage or working conditions;
(f) the Goods differ from the Specification Document as a result of changes made to ensure they comply with applicable statutory or regulatory requirements, or
(g) unavoidable inconsistencies in colour or finish of galvanized tube due to the nature of production.
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. Any extension to the warranty beyond that indicated in clause 5.1 shall be advised and agreed in writing on a case-by-case basis and be subject to handling, installation, environmental and maintenance recommendations.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) 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;
(b) notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(d); and
(c) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the Customer’s ongoing financial position.
6.4 At any time before title to the Goods passes to the Customer, the Supplier may require the Customer to deliver up all Goods in its possession and control that have not been resold, or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored, to recover them. The Customer shall procure entry to any such third party’s premises if requested to do so by the Supplier.
7. Supply of Services
7.1 The Supplier shall supply the Services to the Customer in accordance with the Specification Document in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in an Order or the Supplier’s quotation, statement of works or Specification Document, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Specification Document if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill and of a quality conforming to generally accepted industry standards and practices.
7.5 In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, the Supplier shall notify the Customer as soon as possible and:
(a) the Supplier shall have no liability in respect of any delay to the completion of any supply of Goods and/or Services;
(b) if applicable, the timetable for the supply of Goods and/or Services will be modified accordingly; and
(c) the Supplier shall notify the Customer at the same time if it intends to make a claim for additional costs.
8. Customer’s obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in Specification Document are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer’s premises for the supply of the Services;
(f) obtain and at all times maintain all necessary licences, permissions and consents that may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all materials, equipment and tools, documents, data and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Specification Document, Supplier’s quotation or statement of work or otherwise agreed by the parties.
8.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier may suspend performance of the Services until the Customer remedies the Customer Default, and rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. Charges and payment
9.1 The price for the Goods is the price set out in the Order and include the standard costs of packaging, insurance and transport and delivery of the Goods which shall be invoiced to the Customer. Standard delivery will rely on the Customer having the necessary equipment to offload at kerbside.
9.2 Any requirement for none-standard delivery or transport, such as offloading or movement of Goods must be specified at time of enquiry and included in purchase order as applicable and maybe subject to an additional cost notified to the Customer and invoiced to the Customer. In the event specialised delivery, such a roof top delivery, is required, any additional cost of transport and or delivery shall be notified to the Customer and invoiced to the Customer.
9.3 The Supplier reserves the right to:
(a) increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index;
(b) 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:
(i) 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);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification Document; 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.
9.4 In respect of the Goods, the Supplier shall invoice the Customer upon delivery of the Goods, or at any time after acceptance of the Order, or as otherwise agreed by the parties. Initial orders will require payment in full before delivery. Subsequent orders can be paid for on agreed terms, subject to the establishment of a confirmed credit account. On all quotations over £50,000, terms will be 30% proforma invoice of project total with balance paid according to standard credit terms.
9.5 All Orders including non-standard items, bespoke items, special items, items manufactured to the Customers specification and/or items which involve cutting, fabrication, assembly, polyester powder-coating may require a deposit payment.
9.6 In respect of Services, the Supplier shall invoice the Customer at any time after acceptance of the Order and/or in accordance with any instalment payment plan set out in the Order or otherwise agreed by the parties.
9.7 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice or in accordance with any credit terms or other terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier,
and time for payment shall be of the essence of the Contract.
9.8 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 Goods or Services or both, as applicable, at the same time as payment is due for the supply of the Goods or Services.
9.9 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.10 If after the 90 days an invoice remains unpaid it will passed onto the Supplier’s Credit Insurers for collection where full payment will be due plus interest and any associated charges.
9.11 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.12 In the event that the Customer’s procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the goods and services are supplied.
10. Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) or produced from or arising because of the performance of the Contract shall be owned by the Supplier and the Customer hereby assigns all its right title and interest in such Intellectual Property Rights to the Supplier and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
11. Data protection
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
12. Limitation of liability
12.1 The limits and exclusions in this clause 12 reflect the insurance cover the Supplier has been able to arrange. The Customer is responsible for making its own arrangements for the insurance of any excess liability.
12.2 References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
12.3 Nothing in the Contract limits any liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) defective products under the Consumer Protection Act 1987; or
(e) any liability that legally cannot be limited; or
(f) the Customer’s payment obligations under the Contract.
12.4 Subject to clause 12.3, the Supplier’s total aggregate liability to the Customer shall not exceed the total sum paid or payable in respect of the Goods and/or Services supplied which are the subject of the claim.
12.5 Subject to clause 12.3, the following types of loss are wholly excluded:
(a) loss of profits (including loss of anticipated savings);
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of use or corruption of software, data or information;
(e) loss of or damage to goodwill; and
(f) indirect or consequential loss.
12.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
12.7 This clause 12 shall survive termination of the Contract.
13. Termination
13.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract for convenience by giving the Customer not less than 14 days written notice.
13.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 13.2(b);
(c) the other party suspends or ceases, or threatens to suspend or cease carrying on business; or
(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
13.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
13.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.2(b) to clause 13.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
14. Consequences of termination
14.1 On termination or expiry of the Contract, the Customer shall:
(a) immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
(b) return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract.
14.2 Subject to clause 14.3, without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer terminates a Contract or cancels an Order for Goods and/or Services, the Customer shall be required to pay to the Supplier, as damages and not as a penalty, the full amount of any third party costs to which the Supplier has committed. In respect of cancellations on less than five working days’ written notice, the Customer shall be required to pay to the Supplier, as damages and not as a penalty, the full amount for the Goods and/or Services contracted for as set out in the Order. The Customer agrees these are a genuine pre-estimate of the Supplier’s losses in each case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 8.1 shall be deemed to be a cancellation of the Goods and/or Services and subject to the payment of the damages set out in this Clause 14.2.
14.3 In the event the Customer cancels an Order for non-returnable items including any non-standard items, bespoke items, special items, items manufactured to the Customers specification and/or items which involve cutting, fabrication, assembly, polyester powder-coating etc, the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt. No refund shall be due in respect of these non-returnable items.
14.4 Termination or expiry of the Contract shall not affect the parties’ rights and remedies, that have accrued as at termination or expiry, 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.
14.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15. Confidentiality
15.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 15.2.
15.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
16. Force majeure
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events. If the period of delay or non-performance continues for 120 days, either party may terminate the Contract by giving not less than 30 days’ written notice to the other party.
17. General
17.1 Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
17.2 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the usual email addresses set out in the Order or such other address as may be communicated from time to time.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
17.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent or representative of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party unless otherwise expressly agreed to in writing by both parties.
17.6 Subcontracting. The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Order and/or Specification Document.
17.7 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
17.8 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17.9 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.10 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.