TERMS AND CONDITIONS

TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES BY OPTIMA FACILITIES MANAGEMENT LTD

The Customer's attention is particularly drawn to the provisions of clause 12 (Limitation of liability).

Interpretation

The following definitions and rules of interpretation apply in these Conditions.

Definitions:

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Commencement Date: has the meaning given in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 18.9.

Contract: the contract between the Supplier and the Customer for the supply of Goods or Services or Goods and Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression Change of Control shall be interpreted accordingly.

Customer: the person or firm who purchases the Goods or Services or Goods and Services from the Supplier.

Deliverables: any deliverables set out in the Order that are produced by the Supplier for the Customer.

Delivery Location: has the meaning given in clause 4.2.

Force Majeure Event: has the meaning given to it in clause 16.

Goods: the goods (or any part of them) set out in the Order.

Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.

Intellectual Property Rights: 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.

Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form, or overleaf, or the Customer's written acceptance of the Supplier's quotation, or made via telephone or by any other means, as the case may be.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.

Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.

Supplier: OPTIMA FACILITIES MANAGEMENT LTD registered in England and Wales with company number 16053688.

Supplier Materials: has the meaning given in clause 8.1(h)

TUPE: shall mean the Transfer of Undertakings (Protection of Employment) Regulations 2006.

Warranties: has the meaning given to it in clause 5.2.

Interpretation:

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

A reference to a party includes its personal representatives, successors and permitted assigns.

A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

A reference to writing or written excludes fax but includes email.

Basis of contract
1. The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.
2. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order, at which point and on which date the Contract shall come into existence (Commencement Date).
3. Any samples, drawings, descriptive matter or advertising issued by the Supplier (or any of the Supplier’s third-party suppliers) and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures or otherwise are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract nor have any contractual force.
4. These Conditions apply to and form part of the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
5. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue unless withdrawn earlier or otherwise stated.
6. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
7. 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.
8. The Customer warrants that they are entering into the Contract for business purposes and not as a consumer.
Goods
1. The Goods are described in the Goods Specification.
2. To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by or modified by or at the request of the Customer, 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 and all other professional costs and expenses (in each case calculated on a full indemnity basis)) 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.
3. The Supplier reserves the right to supply Goods that differ from those specified in the Order, provided that such substitute Goods are of equivalent or superior quality, functionality and performance. The Supplier shall notify the Customer in writing of any such substitute Goods prior to delivery. The Customer shall not be entitled to reject substitute Goods on the grounds of such variation, nor shall such substitution constitute a breach of the Contract or of these Conditions.
4. The Supplier reserves the right to amend the Goods Specification at any time if required by any applicable law or regulatory requirement or the requirements of any product manufacturer or person in the Supplier’s supply chain or good industry practice.
Delivery of Goods
1. The Customer shall return any packaging materials to the Supplier (or any of the Supplier’s third-party suppliers) at the Supplier’s request. 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.
2. The Supplier shall deliver the Goods or procure that the Goods are delivered to the location set out in the Order or such other location as the parties may agree (Delivery Location) within 30 days of payment being received by the Supplier from the Customer (unless otherwise agreed).
3. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by:
  1. a Force Majeure Event;
  2. 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; or
  3. any breach by the Customer of the Contract (including, for the avoidance of doubt, any breach by the Customer of these Conditions).
5. If the Supplier fails to deliver or procure delivery of the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or by the Customer, including (without limitation) 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 or any breach by the Customer of the Contract (including, for the avoidance of doubt, any breach by the Customer of these Conditions).
6. If the Customer fails to accept delivery of the Goods when attempted by the Supplier (or any of the Supplier’s third-party suppliers), then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract (including, for the avoidance of doubt, under these Conditions) in respect of the Goods:
  1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the Business Day following the day on which the Supplier (or any of its third-party suppliers) attempted delivery of the Goods; and
  2. the Supplier (or any of its third-party suppliers) shall store the Goods until actual delivery takes place, and may charge the Customer for all related costs and expenses (including insurance) and any arranged re-delivery.
7. If five Business Days after the day on which the Supplier (or any of its third-party suppliers) first attempted delivery the Customer has not accepted actual delivery of them, the Supplier (or any of its third-party suppliers) 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. If the Supplier (or any of its third-party suppliers) delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
9. The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
Quality of Goods
1. In addition to any other warranties given directly to the Customer by the Supplier in writing, the Supplier warrants that on delivery the Goods shall:
  1. conform in all material respects with the Goods Specification;
  2. be free from material defects in design, material and workmanship; and
  3. be fit for any purpose held out by the Supplier.
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 warranties set out in clause 5.1 or any other warranties given directly by the Supplier to the Customer in writing (Warranties);
  2. the Supplier (or any of its third-party suppliers on its behalf and at its option) are 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, or such other location as the Supplier may reasonably nominate, at the Customer's cost,

the Supplier shall, at its option, arrange for the repair or replacement of 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 Warranties (or any warranties implied by law) if:
1. the Customer makes any further use of such Goods after any of the following events:
  1. giving a notice in accordance with clause 5.2; or
  2. the Customer becomes aware, or has reasonable grounds to be aware, that the Goods do not comply with any of the Warranties or are otherwise defective or unsuitable for safe and proper use;
2. the defect arises because the Customer failed to follow the Supplier's or the relevant product manufacturer’s oral or written instructions, or any oral or written instructions of the Supplier’s own third-party suppliers made known to the Customer, as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
3. if the Customer has failed to comply with any product, operational or maintenance manual or Supplier, manufacturer or industry advice relating to the Goods;
4. the defect arises as a result of the Supplier (or any of its third-party suppliers) following any drawing, design or specification supplied by, or agreed with, the Customer;
5. the Goods are not kept, operated or used in a suitable environment or are used outside the purposes for which they are designed;
6. the Customer alters or repairs such Goods without the written consent of the Supplier;
7. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
8. the Goods differ from their description or the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements or good working practice; or
9. the failure is otherwise not attributable to any act or omission of the Supplier.
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 Warranties.
These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

Title and risk
1. The risk in the Goods shall pass to the Customer on completion of delivery.
2. Title to the Goods shall not pass to the Customer until the earlier of:
  1. the Supplier receiving 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 on the Supplier's behalf from the date of delivery;
  4. notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(d) (inclusive); and
  5. give the Supplier such information as the Supplier may reasonably require from time to time relating to:
    1. the Goods; and
    2. the ongoing financial position of the Customer.
4. Subject to clause 6.5, the Customer may 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:
  1. it does so as principal and not as the Supplier's agent;
  2. title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs; and
  3. it is without prejudice to any other rights or remedies the Supplier may have.
5. At any time before title to the Goods passes to the Customer, the Supplier may:
  1. by notice in writing, terminate the Customer's right (if any) under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
  2. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
Supply of Services
1. The Supplier shall supply or procure the supply of the Services to the Customer in accordance with the Service Specification in all material respects.
2. The Supplier shall use reasonable endeavours to meet any performance dates for the Services specified in the Order, the Service Specification or as otherwise agreed by the parties in writing, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3. The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, any recommendation of any manufacturer or supplier of Goods or other products related to the Services, any recommendation of any provider of other services connected with or required to perform the Services, or good industry practice, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
4. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
Customer's obligations
1. The Customer shall:
  1. ensure that the terms of the Order and any information it provides to the Supplier (whether in connection with the Service Specification or the Goods Specification or otherwise) are complete and accurate;
  2. co-operate with the Supplier, its employees, agents, consultants and subcontractors in all matters relating to the supply of Goods and/or Services;
  3. provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities (including, without limitation, the provision (free of charge) of all electric power, electrical outlets, water, gas, office space, lighting and heating that may be required to carry out the Services) as reasonably required by the Supplier, its employees, agents, consultants or subcontractors to provide the Services and/or facilitate delivery of the Goods;
  4. provide the Supplier its employees, agents, consultants and subcontractors with such information and materials as they may reasonably require in a prompt and timely manner in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
  5. prepare the Customer's premises for the supply of the Services and/or facilitate delivery of the Goods;
  6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
  7. comply with all applicable laws, including health and safety laws;
  8. keep all materials, equipment, documents and other property of the Supplier or any of its employees, agents, consultants and subcontractors (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 (or as the Supplier may direct), and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;
  9. comply with any additional obligations as set out in the Service Specification or the Goods Specification or both; and
  10. arrange for the disposal of refuse from the Customer’s premises.
2. If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any instruction, act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
  1. without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of some or all of its obligations including (but not limited to) any obligations to perform the Services and/or deliver the Goods 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;
  2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and
  3. 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.
Charges and payment
1. Without prejudice to the following provisions of this clause 9, the price for Goods:
  1. shall be the price set out in the Order or, if no price is quoted, the price most recently quoted by the Supplier; and
  2. shall, unless otherwise agreed in writing by the Supplier, be exclusive of all costs and charges of packaging, insurance and delivery of the Goods, which may be invoiced to the Customer by the Supplier at any time.
2. Without prejudice to the following provisions of this clause 9, the charges for the Services shall be calculated on the basis set out in the Order or in the Service Specification, or if no price or basis or calculation is quoted, on a time and materials basis at the suppliers chosen rates.
3. The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsidence and any associated expenses and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
4. The Supplier reserves the right to:
  1. increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index; and
  2. increase the price of the Goods and/or Services, by giving notice to the Customer at any time before delivery or commencement, to reflect any increase in the cost of the Goods or provision of Services to the Supplier that is due to:
    1. any factor beyond the control of the Supplier (including but not limited to foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing, operational or staffing costs);
    2. any increased costs from its own third-party suppliers;
    3. any request by the Customer to change the delivery date(s), quantities or types of Goods or Services ordered, or the Goods Specification or Services Specification; or
    4. any delay caused by any instructions of the Customer in respect of the Goods or Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods or Services.
5. In respect of Goods, unless otherwise agreed the Supplier shall invoice the Customer on or at any time after Goods have been dispatched. In respect of Services, unless otherwise agreed the Supplier shall invoice the Customer on or at any time after the Services have commenced.
6. The Customer shall pay each invoice submitted by the Supplier:
  1. within 14 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
  2. in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.8 will accrue each day at the rate charged from time to time under The Late Payment of Commercial Debts (Interest) Act 1998.
All amounts due under the Contract by the Customer to the Supplier 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).

TUPE
1. Without affecting any other right or remedy available to the Supplier, if at any time it is determined that TUPE applies in a manner that imposes obligations or liabilities on the Supplier, the Supplier shall have the right to terminate the Contract with immediate effect.
2. The Customer shall fully indemnify and hold the Supplier harmless against all liabilities, costs, expenses, damages, and losses (including but not limited to any direct, indirect, or consequential losses, loss of profit, loss of reputation, all interest, penalties, legal costs, and all other professional costs and expenses (calculated on a full indemnity basis)) suffered or incurred by the Supplier arising from:
  1. any transfer or alleged transfer of employees under TUPE from the Customer or any previous or successor contractor or service provider of the Customer to the Supplier at any time;
  2. any failure by the Customer to comply with its obligations under TUPE including but not limited to any information and consultation duties; and
  3. any liability, costs, or claims arising from the Supplier’s termination of the Contract under clause 10.1.
Intellectual property rights
1. All Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier (or the Supplier’s own third party licensors or suppliers) and the Supplier reserves any and all rights in respect of its Intellectual Property Rights arising out of or in connection with the Goods and/or Services.
2. In respect of any and all Intellectual Property Rights in any materials provided by or on behalf of the Customer to the Supplier, the Customer grants to the Supplier (and the Supplier’s own third party licensors and suppliers from time to time) or shall procure the direct grant to the Supplier (and the Supplier’s own third party licensors and suppliers from time to time) of, a fully paid-up, non-exclusive, royalty-free perpetual and irrevocable licence to use such Intellectual Property Rights and to copy any materials provided by the Customer to the Supplier for the purpose of providing the Goods and/or Services or otherwise performing its obligations under or in connection with the Contract.
3. The Customer shall, at its own cost, (and shall use all reasonable endeavours to procure that any relevant third party shall) promptly execute and deliver all such documents and perform all such acts and do all such things as the Supplier may reasonably require from time to time for the purpose of giving full effect to this clause 11.
Limitation of liability THE CUSTOMERS ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
1. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
2. References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation;
  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); and
  4. defective products under the Consumer Protection Act 1987.
4. The cap on the Supplier's liability under clause 12.5 shall be reduced by amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
5. Subject to clause 12.3, the Supplier's total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
6. In clause 12.5:
  1. cap. The cap is the greater of £10,000 and 150% of the total charges in the contract year in which the breaches occurred;
  2. contract year. A contract year means a 12-month period commencing with the Commencement Date or any anniversary of it; and
  3. total charges. Without double counting, the total charges means all sums paid by the Customer and all sums payable under the Contract in respect of Goods and Services actually supplied by the Supplier, whether or not invoiced to the Customer.
7. This clause 12.7 sets out specific heads of excluded loss:
  1. Subject to clause 12.3, clause 12.7(b) excludes specified types of loss for which the Supplier shall have no liability to the Customer.
  2. The following types of loss are wholly excluded and the Supplier shall have no liability for them:
    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. indirect or consequential loss.
8. The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9. This clause 12 shall survive termination of the Contract.
Termination
1. Without affecting any other right or remedy available to it, the Customer may terminate the Contract by giving the Supplier not less than 90 days’ written notice or such shorter notice period as may otherwise be agreed in writing.
2. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract by giving the Customer not less than 14 days’ written notice or such other notice period as may otherwise be agreed in writing.
3. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
  1. the Customer commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified 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), obtaining a moratorium, 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, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
  4. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
  5. the Customer fails to pay any amount due under the Contract on the due date for payment; or
  6. there is a Change of Control of the Customer.
4. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
Consequences of termination
1. On termination of the Contract:
  1. the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices (whether or not due) and interest and, in respect of Goods and Services supplied (in whole or in part) 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 any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier (or any of its third-party suppliers) may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
3. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
Confidentiality
1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 15.2.
2. Each party may disclose the other party's confidential information:
  1. to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 15; and
  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
3. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
Force majeure
1. For the purpose of this clause 16, a “Force Majeure Event” shall mean any event, circumstance or cause beyond a party’s reasonable control, which shall include, without limitation:
  1. acts of God, flood, drought, earthquake or other natural disaster;
  2. epidemic or pandemic;
  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;
  4. nuclear, chemical or biological contamination or sonic boom;
  5. any law or action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;
  6. collapse of buildings, fire, explosion or accident;
  7. any labour or trade dispute, strikes, industrial action or lockouts;
  8. any force majeure event including but not limited to those listed in this clause 16.1 occurs in respect of any supplier or subcontractor of the Suppler; and
  9. interruption or failure of utility service.
2. Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for six months, the party not affected may terminate the Contract by giving 14 days' written notice to the affected party.
Indemnity

The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to 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:

the Customer’s breach or negligent performance or non-performance of the Contract;
the Customer breaching any credit or payment agreement it has with the Supplier; and
any enforcement of the Contract by the Supplier.

General
1. Assignment and other dealings
  1. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
  2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier (such consent to be provided or withheld at the Supplier’s absolute discretion).
2. Set-off. The Supplier may at any time, without notice to the Customer, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by the Supplier of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
3. Notices.
  1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
    1. 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
    2. sent by email to the relevant address of the party to be served (or an address substituted in writing by that party).
  2. Any notice shall be deemed to have been received:
    1. if delivered by hand, at the time the notice is left at the proper address;
    2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
    3. 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.
  3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
4. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 18.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
5. Waiver.
  1. Except as set out in clause 2.7, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
  2. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
6. 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.
7. Entire agreement.
  1. The Contract constitutes the entire agreement between the parties.
  2. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
8. Third party rights.
  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.
  2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
9. 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).
10. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

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.