Terms and conditions for the supply of goods

1. Interpretation

  1. Definitions:

    Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
    Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.3.
    Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
    Customer: the person or firm who purchases the Goods from the Supplier.
    Force Majeure Event: an event or circumstance beyond a party's reasonable control.
    Goods: the goods (or any part of them) set out in the Order.
    Order: the Customer's order for the Goods, as set out in the Customer's purchase order form, Customer’s online request via the Supplier’s website, the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be.
    Supplier: NEBCO Trading Ltd (registered in England and Wales with Company Number 12547480)

  2. Interpretation:

    1. a reference to a statute or statutory provision is a reference to such statute or provision as amended or reenacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
    2. 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.
    3. a reference to writing or written includes faxes and emails.

 

2. Basis of contract

  1. 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. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order submitted by the Customer are complete and accurate.
  3. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
  4. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
  5. Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or website or advertisements or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
  6. A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Days from its date of issue (and, for the avoidance of any doubt, can be withdrawn by the Supplier at any time).
  7. By submitting an Order to the Supplier, the Customer hereby warrants and undertakes to the Supplier, that the Customer wishes to purchase the Goods as a business customer for the use in business (and not, for the avoidance of any doubt, as a consumer).

 

3. Goods

  1. The Goods are described in the Supplier's catalogue (including, without limitation, information on the Supplier’s website and/or any of the Supplier’s advertisements and/or brochures)
  2. The Supplier reserves the right to amend the Goods if required by any applicable statutory or regulatory requirements.
  3. The Supplier shall not be responsible for assembling the Goods.

 

4. Delivery

  1. The Supplier shall ensure that:
    1. each delivery/collection of the Goods is accompanied by a delivery note that shows the date of the Order and, the type and quantity of the Goods (including the code number of the Goods, where applicable); and
    2. if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense. Unless the Supplier requires the Customer to return any packaging materials, the Customer shall be responsible for disposing of the same (including, without limitation, pallets).
  2. 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 OR (if set out in the Order) the Customer shall collect the Goods from the Supplier's premises or such other location as may be advised by the Supplier prior to collection (which shall for the purpose of these Conditions also be referred to as the Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.
  3. Delivery (at law) is completed on the completion of (in the case of delivery) unloading or (in the case of collection) loading of the Goods at the Delivery Location. In the case of delivery, the Customer shall be solely responsible (at the customer’s own cost) for immediately removing the Goods from the vehicle(s) containing the Goods as soon as the said vehicle(s) arrives at the Delivery Location. Furthermore, the Customer shall accept strict liability for any damage caused to the Goods and/or the vehicle(s) containing the Goods in respect of the removal of the Goods from the said vehicle(s). It is also agreed that if the Customer does not immediately remove the Goods from the vehicle(s) as soon as the said vehicle(s) arrives at the Delivery Location, the Customer shall indemnify the Supplier against any losses, damages, costs, liability and/or expenses that the Supplier incurs as a result (including, without limitation, any storage and/or re-delivery costs).
  4. Any dates quoted for delivery/collection are approximate only, and the time is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods and/or, as applicable, in making the Goods available for collection 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.
  5. If the Supplier fails to deliver (or, as applicable, make available for collection) 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 (or, as applicable, make available for collection) 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.
  6. If the Customer fails to collect or (as applicable) accept delivery of the Goods within three 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 the Supplier's failure to comply with its obligations under the Contract:
    1. delivery (at law) of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
    2. the Supplier shall store the Goods until delivery/collection takes place, and charge the Customer for all related costs and expenses (including insurance).
  7. If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery or, as applicable, collection the Customer has not collected or (as applicable) accepted 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.
  8. The Supplier may deliver (or, as applicable, make available for collection) the Goods by instalments, which shall be invoiced and paid for separately (together with the relevant transport/delivery charges). Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
  9. The type and use of packaging and the mode of delivery of the Goods shall be at the absolute discretion of the Supplier.
  10. For the avoidance of any doubt, the Supplier shall not be obliged to comply with any special and/or specific delivery instructions and/or requests made by the Customer, unless agreed in writing in the Contract.
  11. The Customer hereby agrees to promptly (and, in any event, within 3 days of delivery and/or (as applicable) collection) check the Goods that have been delivered/collected. If the Customer believes that there are any discrepancies in the number/type/quality of Goods delivered/collected, then the Customer must notify the Supplier in writing within 3 days of collection/delivery of the same. If the Customer does not provide any such notification within such 3 day period, the Customer shall be deemed to have accepted that the Goods delivered/collected complies with the relevant delivery note in full.

 

5. Quality

  1. The Supplier warrants that on delivery/collection, the Goods shall:
    1. conform in all material respects with their description in the Order
    2. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
    3. be fit for any purpose held out by the Supplier in the Order
  2. Subject to clause 5.3, if:
    1. the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1 (in the case of any damage that reasonably appears to have been caused to the Goods in transit to the Delivery Location, the Customer must give notice in writing to the Supplier within 3 days of delivery);
    2. the Supplier is given a reasonable opportunity of examining such Goods; and
    3. 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.
  3. The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
    1. the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
    2. the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
    3. the defect arises as a result of incorrect and/or inadequate information supplied by the Customer;
    4. the Customer alters or repairs such Goods without the written consent of the Supplier;
    5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
    6. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  4. Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
  5. 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.
  6. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
  7. The Goods are also sold with the benefit of any manufacturers’ warranty (if any) that apply to such Goods (subject to the terms and conditions of such manufacturers’ warranty)

 

6. Title and risk

  1. The risk in the Goods shall pass to the Customer on completion of delivery (as set out in condition 4.3 above).
  2. Title to the Goods shall not pass to the Customer until the earlier of:
    1. 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
    2. the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
  3. Until title to the Goods has passed to the Customer, the Customer shall:
    1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
    2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
    3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery (at law);
    4. notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.1; and
    5. give the Supplier such information relating to the Goods as the Supplier may require from time to time.
  4. Subject to clause 6.5, 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:
    1. it does so as principal and not as the Supplier’s agent; and
    2. title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
  5. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Supplier may have:
    1. the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
    2. the Supplier may at any time:
      1. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
      2. 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.

 

7. Price and payment

  1. The price of the Goods shall be the price set out in the Order
  2. The Supplier may, by giving notice to the Customer at any time up to 2 Business Days before delivery (or, as applicable, collection), increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
    1. any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
    2. any request by the Customer to change the delivery/collection date(s), quantities or types of Goods ordered; or
    3. any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
  3. The price of the Goods:
    1. excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;
    2. includes the costs and charges of packaging and insurance
    3. excludes the cost and charges of transport/delivery which cost shall be set out in the Order/Contract and shall be invoiced at the same time as the price of the Goods
  4. Unless the provisions of Clause 7.5 apply (or the Customer and Supplier have reached a separate agreement in respect of the payment provisions in writing), after the Contract comes into existence the Supplier shall invoice the Customer for the Goods (and, if applicable, transport/delivery). The invoice shall be payable immediately and, for the avoidance of any doubt, the Supplier shall be under no obligation to deliver (and/or, as applicable, make available for collection) the Goods until payment of the invoice has been received in full and in cleared funds without any deductions.
  5. If the Customer has entered into a separate credit agreement with the Supplier which applies to the Order, remains in force at the time and the Supplier confirms in writing that such credit agreement applies to the Order, the terms of such credit agreement shall apply to the payment of the Goods in respect of the Order.
  6. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
  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 4% per annum above Barclays 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.
  8. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
  9. All amounts payable by the Supplier to the Customer shall be paid in pound sterling (unless the Supplier agrees otherwise in writing).

 

8. Termination

  1. Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
    1. the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
    2. the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
    3. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
    4. the Customer'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.
  2. Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
  3. 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 the Contract on the due date for payment.
  4. On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
  5. Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
  6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

 

9. Limitation of liability

  1. Nothing in these Conditions shall limit or exclude the Supplier's liability for:
    1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
    2. fraud or fraudulent misrepresentation;
    3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
    4. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
  2. Subject to clause 9.1:
    1. the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
    2. the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.

 

10. Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this Contract by giving 3 days’ written notice to the affected party.

 

11. General

  1. Assignment and other dealings.
    1. The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
    2. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
  2. Entire agreement.
    1. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
  3. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  4. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
  5. Severance. If any provision or partprovision 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.
  6. Notices.
    1. Any notice or other communication given to a party under or in connection with the 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, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
    2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.6(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
    3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
  7. Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
  8. Governing law. The Contract, and any dispute or claim (including noncontractual 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.
  9. 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 this Contract or its subject matter or formation.

 

12. Confidentiality

  1. The Customer undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, goods and/or services, customers, clients or suppliers of the Supplier, except as permitted by clause 12.2.
  2. The Customer may disclose the Supplier’s confidential information:
    1. to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract. The Customer shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the Supplier’s confidential information comply with this clause 12; and
    2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  3. The Customer shall not use the Supplier’s confidential information for any purpose other than to perform the Customer’s obligations under the Contract.

 

13. Price

  1. The price of the Goods and (if applicable) Services shall be the price set out in the Order
  2. The Supplier may, by giving notice to the Customer at any time up to 2 Business Days before delivery (or, as applicable, collection), increase the price of the Goods and/or (if applicable) Services to reflect any increase in the cost of the Goods and/or (if applicable) Services that is due to:
    1. any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
    2. any request by the Customer to change the delivery/collection date(s), quantities or types of Goods and/or Services ordered; or
    3. any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
  3. The price of the Goods and/or (if applicable) Services:
    1. excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;
    2. includes the costs and charges of packaging and insurance
    3. excludes the cost and charges of transport/delivery which cost shall be set out in the Order/Contract and shall be invoiced at the same time as the price of the Goods or as otherwise set out in the Order.

 

14. Payment | In respect of orders for goods only:

IN RESPECT OF ORDERS FOR GOODS ONLY:

  1. Unless the provisions of Clause 14.5 apply (or the Customer and Supplier have reached a separate agreement in respect of the payment provisions in writing), after the Contract comes into existence the Supplier shall invoice the Customer for the Goods (and, if applicable, transport/delivery). The invoice shall be payable immediately and, for the avoidance of any doubt (and without prejudice to any other remedies available), the Supplier shall be under no obligation to deliver (and/or, as applicable, make available for collection) the Goods until payment of the invoice has been received in full and in cleared funds without any deductions.

IN RESPECT OF ORDERS FOR PROJECT(S):

  1. The Customer shall pay the Supplier the amounts due as set out in the Order upon completion of each part of the Project as set out in the Order and/or Programme (or in the case of a deposit being payable under the Order, the deposit shall be immediately payable on acceptance by the Supplier of the Order).
  2. For the avoidance of any doubt, the completion of each part of the Project shall, for the purpose of this clause 14, occur when the Supplier (in the Supplier’s absolute discretion) issues an invoice to the Customer in respect of such part of the Project For the avoidance of any doubt, the Supplier shall be entitled to raise an invoice in respect of any part or parts of the Project notwithstanding that minor snagging remains to be completed.
  3. Unless the provisions of clause 14.5 apply to the relevant invoice, invoices raised in respect of the Project shall be payable immediately, and for the avoidance of any doubt (and without prejudice to any other remedies available), the Supplier shall be under no obligation to proceed with the Project until the payment of the invoice has been received in full and cleared funds without any deductions.

IN RESPECT OF ALL PAYMENTS:

  1. If the Customer has entered into a separate credit agreement with the Supplier which applies to the Order, remains in force at the time and the Supplier confirms in writing in respect of each payment due under the Order, that such credit agreement applies to such payments(s), the terms of such credit agreement shall apply to the relevant payment in respect of the Order. For the avoidance of any doubt, if the provisions of such credit agreement are not complied with in full by the Customer, without prejudice to any other remedies available, the Supplier shall be under no obligation to deliver (and/or as applicable, make available for collection), the Goods and/or to continue with the Project until the breach of the credit agreement is remedied in full.
  2. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
  3. 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 4% per annum above Barclays 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.
  4. The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
  5. All amounts payable by the Supplier to the Customer shall be paid in pound sterling (unless the Supplier agrees otherwise in writing).
  6. The Supplier may by agreement invoice the Customer’s funder. Neither agreement to do so nor acceptance of payment direct from the funder shall release the Customer from any of the duties, obligations or liabilities under the Contract save for the need to pay the price already paid by the funder. The Customer has irrevocably represented and warranted to the Supplier that notwithstanding payment by the funder, the Customer is the purchaser of the Goods and/or (if applicable) Services. If the Customer is in breach of this clause in the event of non-payment (whether in whole or in part) of the price the Customer shall act as agent for the Supplier and recover the Goods from the funder and return the Goods immediately to the Supplier.
  7. Unless set out in the Order, it is agreed that no retentions shall apply in respect of Projects.

 

15. Termination

  1. Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
    1. the Customer commits a material breach (including, without limitation, any failure to pay when due any amount under this Contract or any related separate credit agreement) of any term of the Contract (and/or if applicable, the terms of any separate credit agreement applying to the Order and/or any payment in respect of the Order) and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
    2. the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
    3. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
    4. the Customer'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.
  2. Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 15.1(a) to clause 15.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
  3. On termination of the Contract:
    1. the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
    2. the Customer shall return all of the Supplier Materials and Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises (including, without limitation, the Site) 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.
  4. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination
  5. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

 

16. Limitation of liability

  1. Nothing in these Conditions shall limit or exclude the Supplier's liability for:
    1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
    2. fraud or fraudulent misrepresentation;
    3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
    4. breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982.
    5. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
  2. Subject to clause 16.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
    1. loss of profits;
    2. loss of sales or business;
    3. loss of agreements or contracts;
    4. loss of anticipated savings;
    5. loss of use or corruption of software, data or information;
    6. loss of or damage to goodwill; and
    7. any indirect or consequential loss.
  3. Subject to clause 16.1 and clause 16.4, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the price of the Goods and (if applicable) the Services (as set by clause 13.1).
  4. Subject to clause 16.1 and if (and only if) the relevant liability arises in respect of the Design Services AND such liability is covered by the Supplier’s indemnity insurance, the Supplier’s total liability to the Customer in respect of such liability, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the contract, shall be limited to £10million.
  5. 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.

 

17. Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this Contract by giving 3 days’ written notice to the affected party.

 

18. General

  1. Assignment and other dealings.
    1. The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
    2. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
  2. Entire agreement.
    1. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
  3. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
  4. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
  5. Severance. 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.
  6. Notices.
    1. Any notice or other communication given to a party under or in connection with the 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, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
    2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.6(a); 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
    3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
  7. 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 of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
  8. Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
  9. 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.
  10. 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 this Contract or its subject matter or formation.