TERMS AND CONDITIONS FOR THE SUPPLY OF PRODUCTS AND SERVICES
The Client’s attention is particularly drawn to the provisions of clause 10 (Limitation of Liability).
1.1 The following definitions and rules of interpretation apply in these Conditions:
Additional Services: Those additional services supplied whether at the request of the Client or any other cause attributable to the Client;
Business Day: A day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Client: The person named in the Specification to whom we have agreed to sell Products and/or to whom we have agreed to provide Services;
Commencement Date: The earliest date for the commencement of the Services and/or supply of the Products, as set out in the Specification;
Conditions: The standard terms and conditions set out in this document (including for the avoidance of doubt set out online including but not limited to on our website) which, unless the context requires otherwise, includes any special terms agreed in writing between the Client and us;
Contract: A contract between the Client and us for the supply of Products and/or Services (including, if applicable, Equipment) in accordance with and subject to these Conditions and incorporating the Specification;
Courier: A commercial courier instructed (by us or by the Client with our consent) to either deliver or to collect Products and/or Equipment;
Equipment: Any equipment supplied on hire to the Client as part of the Services;
Force Majeure Event: Has the meaning given to it in clause 14.1;
Input Material: Any data or other information provided by the Client in whatsoever format;
Intellectual Property Rights or IPRs: patents, utility models, rights to inventions, copyright and neighbouring 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.
Output Material: Any material produced by us in whatsoever format for the Client;
Products: Any item(s) which is/are: (a) manufactured by us whether alone or jointly; (b) purchased by us on behalf of the Client; and/or (c) otherwise owned by the Client and managed by us or our Representatives as part of the Services;
Product Specification: The specification for the Products (including any relevant plans or drawings) set out in our Quotation and confirmed in our Sales Order, as such may be amended by agreement in writing between us and the Client;
Quotation: A quotation issued by us setting out details of the relevant Services, Products and/or Equipment (as applicable) and labelled as a “Quotation”.
Representatives: Our employees, workers, agents, contractors or sub-contractors;
Sales Order: A sales order issued by us and derived from the relevant Quotation, setting out details of the relevant Services, Products and/or Equipment (as applicable) and labelled as a “Sales Order”;
Services: Those Services to be provided by us or our Representatives under a Contract as set out in the Specification;
Services Specification: The specification for the Services set out in our Quotation and confirmed in our Sales Order, as such may be amended by agreement in writing between us and the Client;
Site: The site set out in the Specification for delivery/collection of the Equipment and/or Products;
Specification: Together, the Product Specification and the Services Specification (or if there is only one, then the term Specification shall refer to that one);
Standard Charges: Our standard charges for each of the Services as set out in the Specification;
Us/We/Our: Henson Franklyn Limited (registered in England & Wales under company number 07534266) whose registered office is at The Firs Stables, Torksey, Lincoln, Lincolnshire LN1 2ED, UK; and
VAT: Value Added Tax.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a party includes its personal representatives, successors and permitted assigns.
1.5 A reference to a statute or statutory provision:
1.5.1 is a reference to it as amended or re-enacted;
1.5.2 includes all subordinate legislation made under that statute or statutory provision.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.7 A reference to writing or written includes email but not fax.
2. Basis of Contract
2.1 Subject to any special terms agreed between us and the Client as set out in the Specification or otherwise specified in the Contract, the Contract will be subject to these Conditions to the exclusion of all other terms and conditions including any terms and conditions contained in the Client’s purchase order or which the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 Any Quotation issued by us will be deemed to be an offer to supply the Services (including if applicable any Equipment) and/or Products on these Conditions, and the Contract is formed when written acceptance of our Quotation is received by us or an order is placed on the same terms as our Quotation. Any Quotation issued by us shall only be valid for 30 days. We reserve the right to accept or reject orders placed outside of this 30 day period at our discretion.
2.3 Any samples, drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in on our website, are issued or published for the sole purpose of giving an approximate idea of the Services or Products described in them. They shall not form part of the Contract or have any contractual force.
3. Supply of the Services
3.1 Subject to these Conditions we shall as from the Commencement Date provide the Services to the Client on such terms as set out in the Services Specification and we will use our reasonable endeavours to meet any performance dates specified in the Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services and we shall not be liable to the Client for any 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 Client as a result of any delay in providing the Services if it is due to a Force Majeure Event or results from theft or malicious damage.
3.2 We reserve the right to amend the Specification 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 we shall notify the Client in any such event.
3.3 We warrant to the Client that the Services will be provided using reasonable care and skill by suitably qualified and experienced personnel so far as possible in accordance with the Specification.
4.1 The Products are described in our Quotation, as modified by any applicable Product Specification.
4.2 To the extent that the Products are to be manufactured in accordance with a Product Specification supplied by the Client, the Client shall indemnify us 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 costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection with any claim made against us for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with our use of the Product Specification. This clause 4.2 shall survive termination of the Contract.
4.3 We reserve the right to amend the Product Specification if required by any applicable statutory or regulatory requirement, and we shall notify the Client in any such event.
5. Delivery of the Products
5.1 We shall ensure that each delivery of the Products (and for the purposes of this clause 5 only, all references to “Products” shall include any Equipment) is accompanied by a delivery note which:
5.1.1 shows the date of the Contract, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered; and
5.1.2 states clearly any requirement for the Client to return any packaging material to us. The Client shall make any such packaging materials available for collection at such times as we shall reasonably request. Returns of packaging materials shall be at our expense.
5.2 We shall use a Courier to deliver the Products to the Site or such other location as the parties may agree at any time after we notify the Client that the Products are ready. For the purposes of these Conditions, the delivery location of the Products is when they are unloaded at the Courier’s premises or when they are loaded at onto the Courier’s transport at our premises (Delivery Location).
5.3 Delivery of the Products shall be completed on the completion of the unloading or loading of the Products at the Delivery Location.
5.4 Any dates quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Client’s failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
5.5 If we fail to deliver the Products, our liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement product of similar description and quality in the cheapest market available, less the price of the Products. We shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Client’s failure to provide us with adequate delivery instructions for the Products or any relevant instruction related to the supply of the Products.
5.6 If the Client fails to accept delivery of the Products (including not accepting for any reason delivery to the Site) within five Business Days of us notifying the Client that the Products are ready for collection by the Courier, then except where such failure or delay is caused by a Force Majeure Event or by our failure to comply with our obligations under the Contract in respect of the Products:
5.6.1 delivery of the Products shall be deemed to have been completed at 9.00am on the third Business Day following the day on which we notified the Client that the Products were ready for collection by the Courier; and
5.6.2 we shall store the Products until delivery takes place and charge the Client for all related costs and expenses (including insurance) and risk shall pass to the Client at the point at which storage commences.
5.7 If we have agreed in writing that the Client shall collect the Products from us or our Representatives using a Courier and, ten Business Days after the day on which the we notified the Client that the Products were ready for collection, the Client has not whether itself or through the Courier collected them, risk in the Products shall pass to the Client and we may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Products or charge the Client for any shortfall below the price of the Products.
5.8 We may deliver the Products 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.
6. Quality of the Products
6.1 We warrant that on delivery and for a period being the shorter of: (a) six months from the date of delivery; and (b) the duration of the event for which the Products are supplied (the Warranty Period), the Products shall:
6.1.1 conform with their description and any applicable Product Specification;
6.1.2 be free from material defects in design, material and workmanship; and
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979.
6.2 Subject to clause 6.3, we shall, at our option, repair or replace the defective Products, or refund the price of the defective Products in full if:
6.2.1 the Client gives notice in writing, within a reasonable time of discovery, during the Warranty Period that some or all of the Products do not comply with the warranty set out in clause 6.1;
6.2.2 we are given a reasonable opportunity of examining such Products; and
6.2.3 the Client (if asked to do so by us) returns such Products to the Client’s place of business at the Client’s cost.
6.3 We shall not be liable for the Products’ failure to comply with the warranty in clause 6.1 if:
6.3.1 the Client makes any further use of such Products after giving a notice in accordance with clause 6.2;
6.3.2 the defect arises because the Client failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there is none) good trade practice;
6.3.3 the defect arises as a result of the us following any drawing, design or Product Specification supplied by the Client;
6.3.4 the Client alters or repairs such Products without our prior written consent;
6.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6.3.6 the Products differ from the Product Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.4 Except as provided in this clause 6, we shall have no liability to the Client in respect of the Products’ failure to comply with the warranty set out in clause 6.1.
6.5 These Conditions shall apply to any repaired or replacement Products supplied by us.
7.1 The Client shall pay the relevant Standard Charges for the provision of the Services (including where relevant, Equipment). We reserve the right to vary the Standard Charges from time to time by giving not less than two months’ written notice to the Client. The price of the Products shall be the price set out in the Quotation.
7.2 The time of payment by the Client shall be of the essence of the Contract.
7.3 We reserve the right to invoice prior to the Commencement Date an amount up to and including the full price for provision of the Services. If this is the case, the Client shall make payment in full without any set-off or other deduction by the date specified by us in writing in full and in cleared funds to a bank account nominated in writing by us to the Client, failing which we shall not be obliged to provide the Services and/or Products and the provisions of clauses 7.8 and 7.9 shall apply.
7.4 Where full payment or balance of payment is due after the Commencement Date, the Client shall pay the price of the Services and/or Products in full and in cleared funds to a bank account nominated in writing by us to the Client within 30 days from the date of the invoice.
7.5 Where the Client requests any change to the Specification, we will be entitled to charge the Client for any additional costs incurred by us as a result of such change, including for any Additional Services or Products which we agree to provide, which will be charged at the Standard Charges in use at such time or applicable price for Products (as applicable).
7.6 The Standard Charges are quoted as exclusive of any VAT, for which the Client shall be additionally liable at the applicable rate from time to time. Where any taxable supply for VAT purposes is made under the Contract by us to the Client, the Client shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.7 Without prejudice to any other remedy which we may have, we shall be entitled to:
7.7.1 charge interest on a daily basis on any overdue amount from the due date until the overdue amount is paid in full, both before and after judgement. Interest under this clause 7.7 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%; and/or
7.7.2 suspend the provision of all or any of the Services and/or Products in the event that any sum due hereunder is not paid on its due date until the overdue amount is paid in full.
7.8 We reserve the right to cancel the Contract for any reason at any time prior to the scheduled date for provision of the relevant Services and/or Products, including without limitation under clause 8.5, in which case the Client will be liable to pay to us reasonable compensation for work-in-progress at the time of cancellation. In the event that the Client cancels the Contract or the provision of any element of the Services under the Contract (for any reason including as a result of a Force Majeure Event), we shall be entitled to charge the Client for those Services we are no longer required to provide by reference to how long before the date(s) upon which those Services were to be provided as set out in the Specification (the Specified Date(s)) we received written notice of cancellation, as set out below.
When Notice of Cancellation is received; Percentage of Charges Chargeable for Cancelled Services
- One month or more prior to the Specified Date(s): 50% (fifty percent)
- Between one month and 14 days before the Specified Date(s): 75% (seventy five percent)
- Less than 14 days prior to the Specified Date(s): 100% (one hundred percent)
- If Equipment or Products have been deployed to the Site (irrespective of date of Notice of Cancellation): up to 100%
7.9 In addition to any amounts payable to us under clause 7.8 in the event of cancellation of the Contract and/or any of the Services, the Client shall in addition pay to us any non-recoverable costs incurred by us on behalf of the Client (including but not limited to costs incurred by us in carrying out any manufacturing of Products and/or costs incurred with third party manufacturers/sub-contractors in relation to the purchase and/or manufacture of Products) after reasonable reconciliation (Non-Recoverable Costs).
7.10 In the event that one or more of the Services is rescheduled from the Specified Date(s) at the request of the Client or by reason of a change to the Specification requested by the Client or otherwise as a result of an exercise of our rights under these Conditions or which is not attributable to any fault of ours, we shall be entitled to charge as an Additional Service for any additional costs incurred by us arising out of the rescheduling of the Services including any Non-Recoverable Costs incurred prior to receipt of a request to reschedule.
7.11 Where the Specification includes the supply of any Products (whether manufactured by us or by or with third parties), at the point of the Contract coming into force and effect pursuant to clause 2.2, the Client agrees that they shall pay in advance all sums as indicated for the manufacture and supply of the Products, whether mobilised for deployment at an event or otherwise. If the manufacture is part complete, then reasonable reconciliation will be undertaken.
7.12 Subject to clauses 5.6.2 and 5.7, risk in the Products shall pass to the Client on delivery to the Site.
7.13 Title in the Products shall not pass until such time as the Client has paid all sums due and owing to us under any account whatsoever. Until we are paid in full for the Products, the Client shall: (a) keep the Products separate from all other products in its possession; (b) clearly identify the Products as belonging to us; and (c) deal with the Products in the ordinary course of business only, which excludes dealings with Products after the Client has entered into an insolvency situation. In the event of the termination of the Contract or the Client’s insolvency prior to the passing of title the Client shall immediately return all Products to us and in default the Client hereby grants to us a licence to enter upon the premises of the Client (and shall procure a licence to enter onto the premises of any third party where any of the Products are stored) to recover the Products.
7.14 We reserve the right to charge reasonable storage charges for Products stored by us, including charges for insurance if arrangement is made in accordance with clause 9.1.8 for us to insure the Products. If:
7.14.1 storage charges remain unpaid in excess of 30 days from the date of our invoice for storage then, if 30 days following notice having been given by us to the Client of our intention to dispose of or sell such Products the Client has not settled the invoice in full; and/or
7.14.2 any Products have been stored by us for any period in excess of 12 months,
we reserve the right to dispose of or sell such Products as we see fit and shall not be obliged to account to the Client in any way in respect of the disposal or sale of such Products.
7.15 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).
8. Rights in Input Material and Output Material
8.1 All IPRs in any:
8.1.1 Input Material shall belong to the Client or its licensors; and
8.1.2 Output Material shall belong to us or our licensors.
8.2 You hereby authorise us to reproduce any Output Material (including IPRs held by you in any Input Material that have been incorporated into any Output Material) in our own publicity material.
8.3 Any information provided by either party to the other which is so designated shall be kept confidential by the other, save where such information was public knowledge at the time or subsequently became public knowledge through no fault of the other party.
8.4 The Client warrants that any Input Material and its use by us for the purpose of providing the Services will not infringe the IPRs of any third party, is not obscene, libellous or otherwise unlawful or unethical, and the Client shall indemnify us against any and all losses, damages, costs, expenses or other claims arising from any such infringement or other breach of the foregoing provisions of this clause 8.4.
8.5 We may suspend or cancel the provision of all or any of the Services or the supply of Products in the event of an alleged breach of clause 8.4, and in the event that we cancel the provision of one or more of the Services or supply of Products under this clause 8.5, the provisions of clause 7.8 will apply.
9. Client’s Obligations
9.1 The Client shall:
9.1.1 maintain and keep any Equipment and/or Products in good condition, fair wear and tear excepted, as from the time upon which we have completed the installation of the Equipment and/or Products. We shall be deemed to have completed the installation of the Equipment and/or Products when having installed them, they are handed over to the manager of the Site or if no manager is present, as at the time of installation;
9.1.2 inform us of any repairs which are from time to time required to the Equipment and/or Products;
9.1.3 ensure that all persons who use the Equipment and/or Products are properly instructed in their safe and correct use and that they are in possession of any instructions issued;
9.1.4 ensure that the Equipment and/or Products are used correctly;
9.1.5 ensure that safe, suitable and freely accessible facilities are available to us to enable us, our Representatives and/or any Courier to remove the Equipment and/or Products upon completion of our provision of the Services;
9.1.6 ensure that, where a Courier is instructed at the Client’s request to remove the Equipment and/or Products from the Site upon completion of our provision of the Services, that the Equipment and/or Products are readily identifiable to enable the Courier to remove them in a timely fashion on the Courier’s first visit to the Site;
9.1.7 ensure that the Equipment and/or Products are suitable for their intended purpose;
9.1.8 ensure, where any Equipment and/or Products are in our possession including in storage, that (save as otherwise agreed in writing) they are insured at the Client’s cost against all appropriate risks including, without limitation, fire, theft, and malicious damage. The Client acknowledges that:
a) save as otherwise agreed in writing, we shall have no responsibility whether to the Client, third parties or otherwise arising in respect of such risks or the Client’s failure to insure any such Products and the Client hereby indemnifies us in respect of any loss, costs, expenses and claims which we may suffer or incur arising therefrom; and
b) where the Client becomes responsible for the Equipment and/or Products under the Contract (pursuant to clause 9.1.1, 7.12 or otherwise), it is the Client’s responsibility to ensure that appropriate insurance is in place to insure against all appropriate risks including, without limitation, fire, theft, and malicious damage;
9.1.9 where any Equipment and/or Products are to be delivered (either by us or a Courier), ensure that there are safe, suitable and freely accessible facilities available to unload the Equipment and/or Products and deliver them to the designated place on the Site;
9.1.10 supply us with all necessary information relating to the Services and (if applicable) Products, within such time and in such manner as we may reasonably require (including where a Courier is instructed at the Client’s request to deliver the Equipment and/or Products to the Site, the correct delivery information along with any appropriate delivery instructions to enable delivery in a timely fashion in accordance with the Contract);
9.1.11 ensure the accuracy of all Input Material and shall be responsible for, and indemnify us against, any loss arising from its inaccuracy. We may reject any Input Material which in our reasonable opinion we believe to be unsuitable;
9.1.12 retain duplicate copies of all Input Material. Risk in the Input Material shall remain with the Client and we shall have no liability for any loss or damage, however caused to the Input Material; and
9.1.13 indemnify us 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 us in connection with any breach by the Client of its obligations under the Contract.
9.2 We may at any time make any changes to the Specification or the Services which are necessary to comply with any applicable safety, legal and/or other regulatory requirements.
9.3 So far as we are reasonably aware as at the date of the Contract, any Output Material (save to the extent that this incorporates Input Material, for which we shall have no liability) will not infringe the IPRs of any third party.
10. Limitation of Liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 We have obtained insurance cover in respect of our own legal liability for individual claims, as such is set out in our Quotation. The limits and exclusions in this clause reflect the insurance cover we have been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.
10.2 The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.3 Neither party may benefit from the limitations and exclusions set out in this clause 10 in respect of any liability arising from its deliberate default.
10.4 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
10.4.1 death or personal injury caused by negligence;
10.4.2 fraud or fraudulent misrepresentation; and
10.4.3 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).
10.5 Our total liability to the Client shall not exceed an amount equal to 200% (two hundred percent) of all sums paid by the Client and all sums payable under the Contract in respect of goods and services actually supplied by us, whether or not invoiced to the Client.
10.6 We shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from:
10.6.1 any inaccuracy in, or the late arrival of, the Equipment or Products which is attributable to the Input Material;
10.6.2 any misuse of the Equipment or Products;
10.6.3 any failure of the Equipment or Products to fulfil a particular purpose; and
10.6.4 any failure to notify us within three days of delivery of any shortfall or other patent defect in the Products and/or Equipment.
10.7 This clause 10.7 sets out specific heads of excluded loss and exceptions from them:
10.7.1 Subject to clause 10.4.1, the types of loss listed in clause 10.7.3 are wholly excluded by the parties, but the types of loss and specific losses listed in clause 10.7.4 are not excluded.
10.7.2 If any loss falls into one or more of the categories in clause 10.7.3 and also falls into a category, or is specified, in clause 10.7.4, then it is not excluded.
10.7.3 The following types of loss are wholly excluded:
a) loss of profits;
b) loss of sales or business;
c) loss of agreements or contracts;
d) loss of anticipated savings;
e) loss of use or corruption of software, data or information;
f) loss of or damage to goodwill; and
g) indirect or consequential loss.
10.7.4 The following types of loss and specific loss are not excluded:
a) sums paid by the Client to us pursuant to the Contract, in respect of any Products, Equipment or Services not provided in accordance with the Contract;
b) wasted expenditure; and
c) additional costs of procuring and implementing replacements for, or alternatives to, Products, Equipment or Services not provided in accordance with the Contract. These include consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials.
10.7.5 We have given commitments as to compliance of the Products, Equipment and Services with relevant specifications in clause 3 and clause 6. 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.
10.7.6 Unless the Client notifies us that it intends to make a claim in respect of an event within the notice period, we shall have no liability for that event. The notice period for an event shall start on the day on which the Client became, or ought reasonably to have become, aware of the event having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.7.7 This clause 10 shall survive termination of the Contract.
10.7.8 The Client acknowledges that the foregoing provisions of this clause 10 are reasonable and reflected in the price payable for the Services which would be higher without those provisions, and the Client accepts such risk and/or will insure accordingly.
11. Duration and Termination
11.1 The Contract shall commence upon the Commencement Date and shall (subject to the provisions of these Conditions and the Contract) continue for the period set out in the Specification.
11.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any material breach of the Contract and (if capable of remedy) fails to remedy the breach within 14 days after being required by written notice to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with its creditors or has a receiver or administrator appointed.
11.3 Upon termination the Client shall immediately return to us all Output Material in its possession and subject to the provisions of clause 7.12 we shall return to the Client all Input Material, Products and other items belonging to the Client in our possession and control.
12.1 Neither party shall during the term of any Contract and for a period of twelve months thereafter solicit the other party’s Representatives who have been employed or engaged in the provision of the Services. “Solicit” shall mean for the purposes of this clause 12.1 the soliciting of such person with a view to engaging such person as an employee, director, subcontractor or independent contractor.
12.2 In the event that either party is in breach of clause 12.1, then the party in breach shall pay to the other by way of liquidated damages an amount equal to 25% of the gross annual salary (as at the time of the breach) of the person so employed or engaged. This provision shall be without prejudice to either party’s ability to seek injunctive relief.
12.3 The parties hereby acknowledge and agree that the formula specified in clause 12.2 is a reasonable estimation of the loss which would be incurred by the loss of the person so involved or engaged.
13 Fuel Charges
We reserve the right to review the transportation costs, fuel charges etc. set out in any Quotation and/or the Specification should the cost of fuel rise above an acceptable amount upon which the original Quotation was based.
14. Force Majeure
14.1 A Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
14.1.1 acts of God, flood, drought, earthquake or other natural disaster;
14.1.2 epidemic or pandemic;
14.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
14.1.4 nuclear, chemical or biological contamination or sonic boom;
14.1.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
14.1.6 collapse of buildings, fire, explosion or accident;
14.1.7 any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
14.1.8 non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
14.1.9 interruption or failure of utility service.
14.2 Provided it has complied with clause 14.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
14.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
14.4 The Affected Party shall:
14.4.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
14.4.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations under the Contract.
14.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than four weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving two weeks’ written notice to the Affected Party.
15.1 Assignment and other dealings
15.1.1 We 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.
15.1.2 The Client 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 our prior written consent.
15.2.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
a) 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
b) sent by email to the address specified in the Quotation.
15.2.2 Any notice shall be deemed to have been received:
a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service; and
c) 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. In this clause 15.2.2c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
15.2.3 This clause 15.2 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.
15.3 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 15.3 shall not affect the validity and enforceability of the rest of the Contract.
15.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
15.5 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 of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
15.6 Entire agreement.
15.6.1 The Contract (including for the avoidance of doubt the Specification) 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.
15.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
15.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
15.7 Third party rights.
15.7.1 Unless it expressly states otherwise, 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.
15.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
15.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
15.9 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.
15.10 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 the Contract or its subject matter or formation.