Gym Design Terms & Conditions of Sale
- DEFINITIONS
“The Vendor” refers to motive8 Ltd registered in England and Wales with company number 04013702 with its registered office at Gibraltar House, Rodd Estate, Off Fairwater Drive, Govett Avenue, Shepperton TW17 8AB.
“The Client” refers to the person, firm or corporate body identified as the Client in a Purchase Order Form, Service Specification or Goods Specification as the case may be together with any subsidiary, firm or corporate body within the Client’s group.
“Business Day” a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
“Contract” the contract between the Vendor and the Client for the supply of Goods and/or Services as set out in the Order and in accordance with these terms and conditions of sale.
“Cooling Off Period” 14 days from the date of the Order.
“Delivery Location” is the destination for delivery of the Goods as stipulated in the Quotation or otherwise agreed between the Client and the Vendor in writing.
“Goods” the goods (or any part of them) set out in the Order.
“Goods Specification” any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Client and the Vendor
“Intellectual Property Rights” all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, 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, and all similar or equivalent rights or forms of protection in any part of the world.
“Order” the Client’s order for the supply of Goods and/or Services, as set out in the Client’s Purchase Order Form or the Client’s written acceptance of the Quotation as the case may be.
“Purchase Order Form” is the form accompanying these terms and conditions of sale
“Quotation” the written breakdown of proposed charges, expenses, and any applicable payment terms of the Vendor to provide Goods and Services in accordance with the Specifications and any documents referred to therein.
“Remaining Balance” is the sum of money due after subtracting the deposit paid by the Client from the total price payable.
“Services” the services provided by the Vendor to the Client as set out in the Service Specification
“Service Specification” the description or specification for the Services provided in the Purchase Order Form by the Vendor to the Client.
“Snagging” any minor defects in the Goods; the installation of the Goods and/or Services which are attributable to the Vendor or its agents.
“Specifications” any applicable Goods Specifications and/or Service Specifications.
“Writing” includes any written form including fax and email but specifically excludes SMS or MMS text messages or other messages communicated through social networks. - BASIS OF CONTRACT
2.1. The Order constitutes an offer by the Client to purchase Goods and/or Services in accordance with these terms and conditions of sale.
2.2. The Order shall only be deemed to be accepted on the earlier of:
2.2.1. the Vendor issuing written acceptance of the Order;
2.2.2. the Vendor, with the Client’s knowledge, commencing the provision of any Services; or
2.2.3. the Vendor assigning any Goods to the Order
2.2.4. at which point and on which date the Contract shall come into existence (Commencement Date).
2.3. This Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Vendor which is not set out in the Contract.
2.4. Where the Vendor is required to act as the Client’s agent to procure the purchase and installation of any Goods or the performance of any Services from or by a third party (a Supplier) directly to the Client, the terms of any such contract with the Supplier shall be implied into the Contract to the extent that:
2.4.1. they relate to specific Goods or Services; and
2.4.2. only to the extent that such terms vary the Contract only in so far as is reasonably necessary to protect the Vendor and, in such cases, the terms of any such contract shall take precedence over these Terms and Conditions to the extent that there is any conflict.
2.5. Any samples, drawings, descriptive matter or advertising issued by the Vendor and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Vendor’s website, catalogues or brochures 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.
2.6. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7. All prices shown on the Vendor’s price list or any Quotation shall not constitute an offer and shall be valid only for the period stated or if no period is stated, is only valid for a period of 30 days from its date of issue. After expiration of the acceptance date the quotation must be reconfirmed in writing by the Vendor.
2.8. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified. No other terms or conditions (including any written on or attached to any purchase order form, document or correspondence) shall be included or implied unless previously agreed upon in writing and signed by an authorised officer of the Vendor. No purported variation of the terms will be effective unless confirmed in writing by the Vendor and in no event will any Client’s standard terms and conditions of business apply.
2.9. In the event of any conflict or inconsistency between any Quotation and these terms and conditions, the Quotation shall prevail unless otherwise agreed by the Vendor in writing. - PRICE
3.1. Goods and Services are invoiced in accordance with the Order.
3.2. If the Order does not contain express terms relating to invoicing and payment and the other value is below £20,000 then the total price as set out in the quotation shall be invoiced and payable in advance; if the order value exceeds £20,000 then:
3.2.1. 50% of the total price as set out in the Quotation shall be invoiced and payable in advance;
3.2.2. 45% of the Price shall be invoiced and due on delivery of the Goods or on completion of the Services; and
3.2.3. 5% shall be payable on the completion of the Snagging Period, if any.
3.3. In the event that the Price changes then the sums due to be invoiced in clause 3.2 shall be adjusted as if the Price set out in the Quotation is adjusted including the Vendor being entitled to invoice a further sum in advance of making any such changes or incurring any such expenses.
3.4. Prices include all costs, expenses and disbursements incurred by the Vendor required to fulfil the performance of Services.
3.5. Prices are exclusive of VAT which shall be chargeable at the rate as at the date of the invoice. - PAYMENT
4.1. The Client shall pay each invoice submitted by the Vendor in full and in cleared funds to a bank account nominated in writing by the Vendor.
4.2. Unless otherwise expressly stated, invoices are due and payable on the date of issue and shall be overdue after 7 days from the date of issue (the Due Date) and time for payment shall be of the essence of the Contract.
4.3. In the event of default of payment by the Due Date the Vendor reserves the right charge interest at a rate of 8% above the Bank of England base at the time (but if the Bank of England base rate shall be zero or less, at 4%), on monies overdue. 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 Client shall pay the interest together with the overdue amount. The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Vendor may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Vendor to the Client.
4.4. The Vendor reserves the right to suspend or terminate the provision of Services or the delivery of any Goods until such time as all invoices are settled in full and cleared funds. - GOODS AND SERVICES
5.1. The Goods and Services are described in the Vendor’s brochure as modified by the Specification where applicable.
5.2. To the extent that the Goods are to be manufactured or supplied in accordance with a Goods Specification supplied by the Client, the Client shall indemnify the Vendor 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 Vendor in connection with any claim made against the Vendor for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Vendor’s use of the Goods Specification. This clause shall survive termination of the Contract.
5.3. To the extent that the Goods are to be manufactured or supplied or the Services performed in accordance with a Goods Specification supplied by the Client, the Vendor shall not be liable for any loss, costs or expenses suffered by the Client to the extent that such loss, costs or expenses are due to an error in the Specification and the Vendor shall be entitled to rely on the Client’s Specification. - CHANGES TO THE ORDER OR SPECIFICATIONS
6.1. The Vendor may change the Specification without notice to the Client if such change shall not, in the reasonable opinion of the Vendor, materially impact the functionality or aesthetics of the Goods or increase the Price and either:
6.1.1. the Vendor reasonably considers such change to be in the Client’s interests; or
6.1.2. such change is required to ensure that the Goods are safe, fit for purpose (as communicated by the Client to the Vendor) or comply with all applicable legal requirements; or
6.1.3. the Vendor is unable to source Goods matching the Goods Specification at a cost consistent with the Price.
6.2. In the event that any change to the Specification required pursuant to 6.1.1 to 6.1.3 would be a material change or would increase the Price then the Vendor shall notify the Client of the proposed change and any increase in the Price or change in expected delivery times prior to implementing any such change.
6.3. On receipt of written notice pursuant to clause 6.2 the Client shall, within five Business Days, notify the Vendor, in writing either that:
6.3.1. it accepts the change;
6.3.2. it wishes to propose further or different changes; or
6.3.3. it does not agree the change and wishes to terminate the Order (being liable for the Vendor’s reasonable costs and expenses already incurred).
6.4. In the event that the Client does not respond to a notice within five Business Days in accordance with clause 6.3 it shall be deemed to have opted to terminate the Order pursuant to clause 6.3.3.
6.5. If the Client wishes to change an Order (including a change to a Specification) it must notify the Vendor in writing as soon as possible setting out, in reasonable detail, the changes requested.
6.6. On receipt of notice pursuant to clause 6.5 the Vendor shall promptly consider such changes and, as soon as reasonably practical, either:
6.6.1. confirm to the Client that the change can be made without amending the Price or delivery;
6.6.2. confirm to the Client that the change can be made with a revised Price and delivery timescales;
6.6.3. propose alternative changes along with applicable Prices and/or delivery timescales; or
6.6.4. confirm that the charges cannot reasonably be made.
6.7. Within five Business Days of receipt of the Vendor’s notice pursuant to clause 6.6 the Client shall notify the Vendor in writing as set out in clause 6.3. - DELIVERY
7.1. The delivery of Goods or the provision of Services shall not commence until any sums due to be paid in advance (whether in accordance with the Order or pursuant to clause 3.2.1 have been paid in cleared funds to the Suppler. Any agreed date in accordance with clause 7.7, shall be subject to compliance with such payment.
7.2. Time of delivery shall not be the essence of any contract and any time or date given for delivery is given as an estimate only and the Vendor shall not be liable to make good any damage or loss whatsoever and howsoever arising directly or indirectly from delay in delivery. Notwithstanding the foregoing, the Vendor shall make every reasonable effort to deliver the goods by the agreed delivery date.
7.3. If the Vendor fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Vendor 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 Client’s failure to provide the Vendor with adequate delivery instructions for the Goods or any relevant instruction from the Client related to the supply of the Goods.
7.4. Each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Client and Vendor reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered;
7.5. Delivery shall be completed on the arrival and unloading of the Goods at the Delivery Location.
7.6. The Vendor shall arrange the carriage of the goods to the Client unless otherwise specified between the Vendor and the Client in writing.
7.7. A delivery date will be agreed between the Client and the Vendor in writing.
7.8. Following agreement of a delivery date pursuant to clause 7.7, should either party wish to change a delivery date they must notify the other party pursuant to clause 6.
7.9. The Vendor shall require not less than eight week’s written notice of any change likely to affect delivery.
7.10. In the event that any change is made by the Client less than eight weeks before the Delivery Date or the Client refuses or is unable to accept delivery or installation of any Goods, the Vendor shall charge the Client for any additional costs or expenses incurred due to such change or failure or refusal to accept delivery including but not limited to costs in respect of additional management and administrative time, costs of any storage, insurance or additional haulage and labour costs.
7.11. As a pre-estimate of costs incurred pursuant to clause 7.10 such costs shall be calculated at 1% of the total Price before any discount or offer was applied which shall be invoiced and due weekly until such time as the Goods are delivered and installed.
7.12. If the Client fails to accept or take delivery of the Goods within five Business Days of the Vendor notifying the Client that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Vendor’s failure to comply with its obligations under the Contract, in addition to those costs due pursuant to clauses 7.10 and 7.11, delivery of the Goods shall be deemed to have been completed at 9.00 am on the 6th Business Day following the day on which the Vendor notified the Client that the Goods were ready.
7.13. If within 14 days from the date notified by the Client for delivery and/or installation or after the Vendor notified the Client that the Goods were ready for delivery, the Client has not taken or accepted delivery and/or installation of them, the Vendor may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Goods or charge the Client for any shortfall below the price of the Goods.
7.14. The Vendor 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 Client to cancel any other instalment. - INSPECTION AND SNAGGING
8.1. On delivery the Client shall immediately inspect any Goods for defects and report to the delivery driver if any defects exist. Immediately afterwards, the Client shall notify the Vendor of such defects after which time it shall be deemed that any such defects occurred after delivery and at the Client’s risk.
8.2. In the event that the Client identifies any issue with the performance or aesthetics of the Goods or any issue or complication in respect of the installation of such Goods or the performance of the Services the Client shall:
8.2.1. allow the Vendor access on reasonable notice and at reasonable times to inspect the Goods or the provision of the Services;
8.2.2. not dispose of any such Goods until the Vendor has had an opportunity to inspect them;
8.2.3. not attempt to make any repair without the express written consent of the Vendor;
8.3. The Vendor will have the opportunity to rectify any such defects prior to providing any refund of payment to the Client.
8.4. Any works carried out to rectify Snagging shall be agreed between the Vendor, Client and any relevant supplier prior to commencing the works. Once such works have been carried out, the Vendor (or designated agent) will confirm, in its reasonable opinion, whether the Snagging has successfully been rectified.
8.5. Any works carried out to rectify Snagging shall be completed as soon as reasonably possible but time will not be of the essence in carrying out such works.
8.6. The Vendor will inform the Client as soon as reasonably possible should it choose, at its absolute discretion, not to rectify the Snagging and will issue a refund of payment to the Client.
8.7. Unless otherwise agreed in writing, the Vendor shall not be liable for any items of Snagging notified more than six months after installation of a specific Good to which the Snagging relates or the Vendor confirming completion of the Services (the Snagging Period).
8.8. Snagging shall not include any issues arising due to:
8.8.1. fair wear and tear;
8.8.2. the misuse of any Goods;
8.8.3. failure by the Client to use or maintain any Good in accordance with the Vendors or manufacturer’s instructions; or
8.8.4. the reasonable settling or drying of any decoration or installation.
8.9. The Snagging Period shall terminate on the earlier of:
8.9.1. the Client notifying the Vendor, in writing, that there are no further items of Snagging; or
8.9.2. the expiry of six months. - TRANSFER OF TITLE
9.1. The risk in the Goods shall pass to the Client on completion of delivery.
9.2. Although the Client may acquire possession of the goods, ownership and title shall not pass to the Client until the Client has paid the Price and all invoices and other debts due to the Vendor (whether pursuant to the Contract or otherwise) in full and cleared funds.
9.3. Until title to the Goods has passed to the Client, the Client shall:
9.3.1. hold the Goods on a fiduciary basis as the Vendor’s bailee;
9.3.2. store the Goods separately from all other goods held by the Client so that they remain readily identifiable as the Vendor’s property;
9.3.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
9.3.4. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Vendor’s behalf from the date of delivery;
9.3.5. notify the Vendor immediately if it becomes subject to any of the events listed in clause 14.2
9.3.6. give the Vendor such information relating to the Goods and access for the Vendor or its agents to inspect the Goods as the Vendor may reasonably require from time to time.
9.4. If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in clause 14.2, or the Vendor reasonably believes that any such event is about to happen and notifies the Client accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Vendor may have, the Vendor may at any time require the Client to deliver up the Goods and, if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them. - WARRANTY AND EXCLUSIONS
10.1. Notwithstanding any other term of this clause 10, the Vendor shall only give and the Client shall only have the benefit of any warranty to the extent that the Vendor receives a warranty from any supplier in relation to the provision or manufacture of any Good.
10.2. Subject to clause 10.1, the Vendor warrants that on delivery, and for a period of 2 years from the date of delivery (warranty period), the Goods shall:
10.2.1. conform in all material respects with their description;
10.2.2. be free from material defects in design, material and workmanship;
10.2.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
10.2.4. be fit for any purpose held out by the Vendor.
10.3. Subject to clause 13.3, if:
10.3.1. the Client 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 warranty set out in clause 10.2;
10.3.2. the Vendor is given a reasonable opportunity of examining such Goods; and
10.3.3. the Client (if asked to do so by the Vendor) returns such Goods to the Vendor’s place of business at the Vendor’s cost;
10.3.4. the Vendor shall, at its absolute discretion, repair or replace the defective Goods, or refund the price of the defective Goods in full.
10.4. The Vendor shall not be liable to comply with the warranty in clause 10.2 if:
10.4.1. the Client makes any further use of such Goods after identifying any such fault or defect;
10.4.2. the defect arises because the Client failed to follow the Vendor’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;
10.4.3. the defect arises as a result of the Vendor following any drawing, design or specification supplied by the Client;
10.4.4. the Client alters or repairs such Goods without the written consent of the Vendor;
10.4.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
10.4.6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
10.4.7. Any goods that have been repaired or installed by a technician that is not approved by the Vendor.
10.4.8. Goods that have not been maintained periodically as outlined in the operations manual at the intervals specified.
10.4.9. Modifications or alterations that have been carried out which have neither been provided for nor authorised by the Vendor or which have been carried out without complying with the technical instructions specified by the Vendor.
10.4.10. Equipment that has been vandalised, abused, including overloading, or cases where the user has not complied with the instructions given in the operations manual.
10.5. The Vendor shall not be liable for:
10.5.1. routine maintenance, periodic checks and adjustments
10.5.2. the replacement of parts (including consumable items) subject to wear and tear taking into account usage of the equipment
10.5.3. damage by natural elements (e.g. floods) or resulting from accidents
10.5.4. any financial loss as a result of the Goods being unusable.
10.6. Except as provided in this clause 10 the Vendor shall have no liability to the Client in respect of the failure to comply with the warranty set out in clause 10.
10.7. The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Vendor under clause 10.3.
10.8. Repairs carried out under this warranty do not extend the period of the validity of the warranty. - CLIENT’S OBLIGATIONS
11.1. The Client shall:
11.1.1. ensure that the terms of the Order and the Specification are complete and accurate;
11.1.2. co-operate with the Vendor in all matters relating to the Goods and Services;
11.1.3. provide the Vendor, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Vendor to provide the Goods and/or Services;
11.1.4. provide the Vendor with such information and materials as the Vendor may reasonably require to supply the Goods and/or Services, and ensure that such information is accurate in all material respects;
11.1.5. prepare the Client’s premises for the supply of the Goods and/or Services;
11.1.6. 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;
11.1.7. keep and maintain all materials, equipment, documents and other property of the Vendor at the Client’s premises in safe custody at its own risk, in good condition until returned to the Vendor, and not dispose of or use them other than in accordance with the Vendor’s written instructions or authorisation; and
11.2. Any products advised by the Vendor to be used by the Client shall comply with all British and European Standards and Legislation (“the relevant legislation”). The Vendor will work with the Client to advise that the premises meets relevant legislation however it is ultimately the responsibility of the Client to ensure that this is met in reality.
11.3. If the Vendor provides a design layout for the gym they shall in doing so have regard to the provisions of the relevant legislation and other safety considerations in preparing the design layout and positioning within the premises, but cannot accept any responsibility for any financial or other loss or damage suffered by the Client, however arising, insofar as such loss or damage is caused by otherwise attributable to any failure to comply with our designs or recommendations.
11.4. In requesting the Vendor to provide such a design the Client recognises the need to comply with all relevant legislation with regard to the positioning of the products for those who may be unfamiliar with the terms of the relevant legislation and the Client undertakes to indemnify the Vendor against all and any liability the Vendor may incur or suffer actual or threatened by virtue of any failure on the part of the Client to comply with the Vendor’s recommendations or for deviating from the Vendor’s design(s) or by otherwise failing to comply with the relevant legislation insofar as it relates to the positioning of the products within the premises in which they are to be used but only to the extent that the installation and positioning of the products is at variance with the Vendor’s design or other recommendations.
11.5. If the Vendor’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
11.5.1. the Vendor shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Vendor’s performance of any of its obligations;
11.5.2. the Vendor shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Vendor’s failure or delay to perform any of its obligations as set out in this clause; and
11.5.3. the Client shall reimburse the Vendor on written demand for any costs or losses sustained or incurred by the Vendor arising directly or indirectly from the Client Default. - CONFIDENTIALITY
12.1. Each party to this Contract 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 one party by the other, its employees, agents or subcontractors, and any other confidential information regarding the business of either party.
12.2. Either 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 other party’s obligations under the Contract.
12.3. Either party may also disclose such of the other party’s confidential information as is required by law, any governmental or regulatory authority or by a court of competent jurisdiction and shall inform the other party before such disclosure or, if advance notice is not possible, as soon as possible thereafter. This clause 14 shall survive termination of the Contract. - LIMITATION OF LIABILITY: THE CLIENT ‘S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1. Nothing in these Conditions shall limit or exclude the Vendor’s liability for:
13.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
13.1.2. fraud or fraudulent misrepresentation;
13.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
13.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
13.1.5. defective products under the Consumer Protection Act 1987.
13.2. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.3. Subject to clause 13.1:
13.4. the Vendor shall under no circumstances whatever be liable to the Client, 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; and
13.5. the Vendor’s total liability to the Client 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 £10,000.
13.6. This clause 13 shall survive termination of the Contract. - TERMINATION
14.1. Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 3 months’ written notice.
14.2. 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:
14.2.1. 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 14 days after receipt of notice in writing to do so;
14.2.2. 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 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;
14.2.3. 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;
14.2.4. 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;
14.2.5. the other party (being an individual) is the subject of a bankruptcy petition or order;
14.2.6. 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;
14.2.7. 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);
14.2.8. 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;
14.2.9. 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;
14.2.10. 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 this clause 16.2;
14.2.11. the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
14.2.12. the other party’s financial position deteriorates to such an extent that in the Vendor’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.3. Without limiting its other rights or remedies, the Vendor may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Contract on the due date for payment.
14.4. Without limiting its other rights or remedies, the Vendor may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Client and the Vendor if the Client fails to pay any amount due under this Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 16.2, or the Vendor reasonably believes that the Client is about to become subject to any of them. - CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
15.1. the Client shall immediately pay to the Vendor all of the Vendor’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Vendor shall submit an invoice, which shall be payable by the Client immediately on receipt;
15.2. the Client shall return all of the Vendor’s Goods and/or service materials which have not been fully paid for. If the Client fails to do so, then the Vendor may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
15.3. 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
15.4. clauses which expressly or by implication have effect after termination shall continue in full force and effect. - INTELLECTUAL PROPERTY RIGHTS
16.1. All Intellectual Property Rights including moral rights in or arising out of or in connection with the Goods and/or Services shall be owned by the Vendor.
16.2. The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Goods and Services, the Client’s use of any such Intellectual Property Rights is conditional on the Vendor obtaining a written licence from the relevant licensor on such terms as will entitle the Vendor to license such rights to the Client.
16.3. All materials, equipment, documents and other property of the Vendor are the exclusive property of the Vendor. - RIGHT TO CANCELLATION
17.1. If the Client is a consumer (i.e. an individual purchasing Goods or Services for their own personal use and not in connection with a business) then the Client may have the right to cancel the Order without providing any reason, if they do so within the Cooling Off Period.
17.2. The Client only needs to evidence that they have successfully delivered a cancellation form to the Vendor within the Cooling Off Period. To exercise that right you must inform us in writing (including email but not fax) using the contact details stated on the cancellation form annexed.
17.3. If the Client cancels the Order within the Cooling Off Period, the Vendor will reimburse all payments received from the Client.
17.4. If the Client has expressly waived their right to the Cooling Off Period in writing prior to the expiry of the Cooling Off Period, then the Vendor will not be liable to reimburse any payments received and the Client will be liable for any costs and expenses incurred by the Vendor in the performance of the Contract.
17.5. Unless the Client expressly waives the right to exercise a Cooling Off Period, the Vendor will not commence performance of this Contract until such Cooling Off Period has expired. - FORCE MAJEURE
18.1. The Vendor shall not be liable for any failure or delay in performance of its obligations under any contract due to any force majeure event such as, 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, military operations, terrorist action, riot, civil commotion, malicious damage, explosion, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or weather of exceptional severity, lightening damage, default of suppliers or subcontractors, delay in transport, shortage of fuel, embargo or demand of any government department or local authority, the act or omission of any party for whom the Vendor is not responsible or any other cause whatsoever beyond the Vendor’s reasonable control. If any such delay occurs then (unless the cause frustrates or renders impossible or illegal the performance of the contract, or otherwise discharges it) the period for the Vendor to perform its obligations shall be extended by such period as the Vendor may reasonably require to complete the performance of its obligations.
18.2. The Vendor shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
18.3. If the Force Majeure Event prevents the Vendor from providing any of the Services and/or Goods for more than 2 weeks, the Vendor shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Client. - ASSIGNMENT AND OTHER DEALINGS
19.1. The Vendor 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.
19.2. The Client shall not, without the prior written consent of the Vendor, 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. - NOTICES
20.1. 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, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, e-mail.
20.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address in accordance with 20.1 above; if sent by pre-paid first class post or other next working day delivery service, at 10.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, not until such receipt is expressly acknowledged in writing.
20.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. - SEVERANCE
21.1. 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.
21.2. 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. - WAIVER
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 other or 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. - 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. - THIRD PARTIES
A person who is not a party to the Contract shall not have any rights to enforce its terms - VARIATION
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 Vendor. - GOVERNING LAW
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. - JURISDICTION
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).
