Terms and Conditions for the supply of goods and / or services.
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 1.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or Services in accordance with these Conditions. In the absence of a written contract these terms and conditions serve as the contract.
Customer: the person or firm who purchases the Goods and/or Services 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.
Goods Specification: any agreed specification for the Goods, including any relevant plans or drawings that are agreed in writing by the Customer and the Supplier.
Installation Services: means the installation responsibilities of the Supplier as set out in the Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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.
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.
Programme: means the programme for works in respect of a Project.
Project: means a combined Order for any combination of Design Services, Goods and/or Installation Services.
Services: means Design Services and/or (as applicable) Installation Services.
Service Specification: the description or specification for the Services provided in the Order.
Site: means the location at which the Supplier is to deliver or (if applicable) to install the relevant Goods.
Supplier: Olivia Aspinall Studio Limited. (Registered in England and Wales with Company Number 11809503.
a. reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
b. 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.
a reference to writing or written includes emails.
2. Basis of Contract
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.
The Order constitutes an offer by the Customer to purchase the Goods and/or (if applicable) Services 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.
The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order and a 50% deposit has been paid. At which point these terms and conditions shall come into existence.
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.
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 and/or Services referred to in them. They shall not form part of the Contract nor have any contractual force.
A quotation for the Goods and/or Services 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).
By submitting an Order to the Supplier, the Customer hereby warrants and undertakes to the Supplier, that the Customer wishes to purchase the Goods and/or (as applicable) Services as a business customer for the use in business (and not, for the avoidance of any doubt, as a consumer).
The Goods are described in the Customers Order and / or Quotation. It is the responsibility of the Customer to supply the Supplier with accurate and up to date drawings of the Goods at the time of placing an Order.
2. To the extent that the Goods are to be manufactured and/or altered in accordance with a Goods Specification, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
The Supplier reserves the right to amend the Goods and/or the Goods Specification if required by any applicable statutory or regulatory requirements, and the Supplier shall advise the Customer in any such event.
Unless the Contract includes Installation Services (and then only to the extent as set out in the Order), the Supplier shall not be responsible for assembling and/or installing the Goods.
4. Delivery and Programme of Works
The Supplier shall ensure that:
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
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).
The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (in respect of Project Work, being, unless agreed otherwise, the Site) (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.
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 respect of Order(s) for Goods only, 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).
In respect of Order(s) for Goods only, 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.
Any dates/timeframes stated in the Programme in respect of the Supplier’s obligations are approximate only and time is not of the essence. The Supplier shall not be liable for any delay in meeting any such dates/timeframes that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or other instructions relating to the Project or any failure/delay by the Customer in respect of the Customer’s obligations under the Order and/or failure/delay by any of the Customer’s other contractors working in relation to the Project and/or any ancillary work thereto and/or on the Site.
The Customer shall comply with (and shall procure that the Customer’s employees, agents, contractors and/or any other persons under the Customer’s control comply with) the timeframes and dates and obligations as set out in the Programme.
In respect of Order(s) for Goods only, 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.
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:
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
the Supplier shall store the Goods until delivery/collection takes place, and charge the Customer for all related costs and expenses (including insurance).
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.
The Supplier may deliver (or, as applicable, make available for collection) the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
The type and use of packaging and the mode of delivery of the Goods shall be at the absolute discretion of the Supplier.
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 Order.
Without prejudice to the provisions at clause 4.9, if set out in the Order, the Supplier shall be entitled to charge for storage of Goods until such time as the same are delivered to the Delivery Location in accordance with the rates as set out in the Order.
In respect of Order(s) for Goods only, the Customer hereby agrees to promptly (and, in any event, within 3 business 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 business days of collection/delivery of the same. If the Customer does not provide any such notification within such 3 business day period, the Customer shall be deemed to have accepted that the Goods delivered/collected complies with the relevant delivery note in full.
The Supplier warrants that (i) in respect of Order(s) for Goods only, on delivery/collection and/or (ii) in respect of Orders for Project Work on completion of the installation of the Goods (strictly save for any damage/loss caused by the default of the Customer and/or anyone acting and/or on behalf of the Customer (including, without limitation, employees, agents and contractors) and/or a Force Majeure Event), the Goods shall:
conform in all material respects with their description in the Order
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
be fit for any purpose held out by the Supplier in the Order
Subject to clause 5.3, if:
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 respect of Order(s) for Goods only, 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);
the Supplier is given a reasonable opportunity of examining such Goods; and
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.
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:
the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
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;
the defect arises as a result of incorrect and/or inadequate information supplied by the Customer;
the Customer alters or repairs such Goods without the written consent of the Supplier;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
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.
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.
These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
The Supplier will make every effort to ensure Goods are made to the exact measurements supplied by the Customer, however:
a. all Goods have length, width and height tolerances of +/- 3mm.
b. The materials used may be affected by climatic changes therefore the supplier can not held responsible for warping of goods up to +/- 3mm.
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
The risk in the Goods shall pass to the Customer on completion of delivery (as set out in condition 4.3 above).
Title to the Goods shall not pass to the Customer until the earlier of:
the Supplier receives payment of the total price for the Goods and (if applicable) Services under this Contract (as set by clause 13.1) and any other goods and/or services 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
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.
Until title to the Goods has passed to the Customer, the Customer shall (unless set out otherwise in the Order):
store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery (at law);
notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.1; and
give the Supplier such information relating to the Goods as the Supplier may require from time to time.
Subject to clause 6.5 (save in respect of Order(s) that include Installation Services, where the Customer shall have no ability to resell until title has passed under clause 6.2(a)), 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:
it does so as principal and not as the Supplier’s agent; and
title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1, then, without limiting any other right or remedy the Supplier may have:
the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
the Supplier may at any time:
i. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
ii. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. CDM Regulations
If the CDM Regulations apply to the work (“the Works”) being undertaken in respect of the Design Services and/or Installation Services, the following shall apply:
The Customer hereby warrants to the Supplier that the Customer is aware of all of its obligations and duties as a client for the purposes of the CDM Regulations.
Unless specifically stated in the Services Specification and agreed in writing by the Supplier, where applicable, it is noted that the Supplier shall not be appointed as either the principal designer and/or principal contractor in relation to the Works.
The Customer shall ensure that the principal designer and principal contractor that it appoints in relation to the Works comply with their respective obligations under the CDM Regulations, including preparing and maintaining the health and safety file for the Works.
The Customer hereby warrants to the Supplier that the Customer has provided the Supplier with all relevant information to enable the Supplier to assess the obligations that the Supplier shall be under in respect of the CDM Regulations prior to entering into the Contract (including, without limitation, details in respect of the health and safety file, the number of contractors that will be on Site and any regulations/obligations that will be placed on the Supplier in respect of the Site.) It is agreed that, without prejudice to any other remedies available, if the Customer breaches the terms of this clause 7.5, the Supplier shall be entitled to charge an increase in the price for the Goods and/or Services.
8. No Order for Installation Services
Please note that in respect of those Orders under which no Installation Services have been ordered in respect of the Goods (or, where Installation Services have not been ordered in respect of all parts of the Goods/Project):
the Customer shall be fully responsible for assembling and/or installing the Goods (or those Goods for which the Supplier is not contracted to install) without any assistance from the Supplier (whether physical assistance and/or advice and/or in writing or verbally).
The Supplier shall supply with the Goods any instructions and/or guidance that the Supplier has stated in writing in the Order will be enclosed with the Goods and the provision of such instructions/guidance (if any) shall be the full extent of the Supplier’s obligations in respect of the assembling and/or installation of the Goods.
Please note that the Supplier provides no warranty and/or guarantee that any such instructions and/or guidance referred to at condition 8.1(b) above are full, accurate and/or complete. The responsibility for correctly installing and/or assembling the Goods shall lie solely with the Customer.
For the avoidance of any doubt, the Supplier shall accept no liability for the incorrect installation and/or assembly of the Goods.
If, notwithstanding that the Customer has not ordered Installation Services, the Supplier provides assistance (whether physical, verbal and/or written) in respect of the installation of Goods, the Customer agrees that it shall not rely upon the same and the Supplier shall have no liability to the Customer in respect of such assistance (and the Customer hereby confirms that they accept this to be a reasonable limitation on liability on the basis that the price referred to at clause 13.1 does not include such assistance).
9. Supply of Services
The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in Programme, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services as per the provisions of clause 4.8 above.
The Supplier reserves the right to amend the Service 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, associated Goods and/or the Project, and the Supplier shall notify the Customer in any such event.
The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
The Customer hereby warrants to the Supplier that all information, measurements and/or other details provided by the Customer to the Supplier in connection with the provision of the Services (including without limitation, the Design Services) are complete and accurate. The Customer hereby agrees to indemnify and keep the Supplier indemnified against any losses, damages, costs and/or expenses that the Supplier incurs as a result of any breach of this warranty.
Unless set out in the Order, the Supplier shall not be under any obligation to provide any measurements required for the completion of Design Services. The Customer shall, promptly on request, provide any reasonably required measurements, information and/or details required in connection with the Services to the Supplier.
10. Customer’s Obligations
The Customer shall:
ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
co-operate with the Supplier in all matters relating to the Services;
provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services (including, without limitation, the Site);
provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
prepare the Site for the supply of the Services in accordance with the instructions of the Supplier;
Unless (and then to the extent only) agreed otherwise in the Order, 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 (including, without limitation, building regulation approval);
comply with all applicable laws, including health and safety laws;
keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
comply with any additional obligations on the Customer as set out in the Service Specification and/or the Goods Specification and/or the Order and/or the Programme (including, without limitation, any responsibilities that are placed on the Customer under the same).
If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer (including, without limitation, by reason of any other contractors of the Customer) or failure by the Customer to perform any relevant obligation (Customer Default):
without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 10.2; and
the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
11. Intellectual Property Rights
All Intellectual Property Rights in or arising out of or in connection with the Services and/or Goods (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier. Unless agreed otherwise in the Order, the Customer shall have no rights in respect of such Intellectual Property Rights (including, without limitation, no licence to use and/or copy any designs, bespoke samples, drawings and/or other documents produced in respect of the Project or otherwise by and/or on behalf of the Supplier and/or any employees, agents and/or contractors of the Supplier).
To the extent (if at all) that any rights are granted to the Customer in respect of the Intellectual Property Rights arising out of or in connection with the Services and/or Goods, the Customer shall not sub-license, assign or otherwise transfer the same.
The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer
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.
The Customer may disclose the Supplier’s confidential information:
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
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
The Customer shall not use the Supplier’s confidential information for any purpose other than to perform the Customer’s obligations under the Contract.
The price of the Goods and (if applicable) Services shall be the price set out in the Order
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:
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);
any request by the Customer to change the delivery/collection date(s), quantities or types of Goods and/or Services ordered; or
any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
The price of the Goods and/or (if applicable) Services:
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;
excludes the cost and charges of packaging and 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.
IN RESPECT OF ORDERS FOR GOODS ONLY:
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 50% of 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 commence work until payment of the invoice has been received in full and in cleared funds without any deductions.
The remaining 50% balance will be invoiced on completion of the production of the Goods. 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. 4.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. 5.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:
4. 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.
Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
If the Customer fails to make 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 Santander UK 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.
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.
All amounts payable by the Customer to the Supplier shall be paid in pound sterling (unless the Supplier agrees otherwise in writing).
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.
Unless set out in the Order, it is agreed that no retentions shall apply in respect of Projects.
Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
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;
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;
the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
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.
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.
On termination of the Contract:
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;
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.
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
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
Nothing in these Conditions shall limit or exclude the Supplier's liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979;
breach of the terms implied by Section 2 of the Supply of Goods and Services Act 1982.
any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
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:
loss of profits;
loss of sales or business;
loss of agreements or contracts;
loss of anticipated savings;
loss of use or corruption of software, data or information;
loss of or damage to goodwill; and
any indirect or consequential loss.
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).
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.
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.
Assignment and other dealings.
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.
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.
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.
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.
Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
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.
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.
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.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
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.
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.
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.
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.