CONRAD WOLFE LIMITED
STANDARD TERMS AND CONDITIONS OF BUSINESS
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services in accordance with Clause 5.
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 11.5.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Customer: the person or firm who purchases Services from the Supplier.
Customer Default: has the meaning set out in Clause 4.2.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: the deliverables as set out in the Order produced by the Supplier for the Customer.
Order: the Customer’s order for Services as set out in the Customer’s Purchase Order Form.
Matrix of Responsibilities: As defined in Schedule 3 of the Purchase Order Form
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Purchase Order Form.
Specification: the description or specification of the Services provided in writing by the Supplier to the Customer.
Sub-Contractor: As specified in Schedule 3 of the Purchase Order Form
Supplier: Conrad Wolfe Limited registered in England and Wales with company number 11251824.
Premises (or part thereof): As defined in Schedule 2 of the Purchase Order Form.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- 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.
- A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues the Customer with a signed and dated Purchase Order Form at which point the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 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 law, trade custom, practice or course of dealing.
2.5 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.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the Services to the Customer in accordance with the Purchase Order Form in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Purchase Order Form, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the Purchase Order Form 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 the Supplier shall notify the Customer in any such event.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4. CUSTOMER OBLIGATION
4.1 The Customer shall:
- Ensure that the terms of the Order and any information it provides in the Purchase Order Form 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;
- 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;
- 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;
- Comply with all applicable laws, including health and safety laws;
4.2 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 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 4.2; 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.
5. CHARGES AND PAYMENT
5.1 The Charges for the Services shall be calculated on a time and materials basis:
- The Charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the Purchase Order Form.
- The Supplier’s daily fee rates for each individual are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days;
- The Supplier shall be entitled to charge an overtime rate of 50% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in Clause 5.1(b); and
- 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, subsistence 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.
5.2 The Supplier shall invoice the Customer on completion of the Services.
5.3 The Customer shall pay each invoice submitted by the Supplier:
- within 30 days of the date of the invoice; and
- 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.
5.4 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 at the same time as payment is due for the supply of the Services.
5.5 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 9, 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 5.5 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%.
5.6 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).
6. DATA PROTECTION
6.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this Clause 6, Applicable Laws means the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
6.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
6.3 Without prejudice to the generality of Clause 6.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
6.4 Without prejudice to the generality of Clause 6.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
- process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
- ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
- the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
- the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
- assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay on becoming aware of a personal data breach;
- at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the personal data; and
- maintain complete and accurate records and information to demonstrate its compliance with this Clause 6 and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
6.5 Either party may, at any time on not less than 30 days’ notice, revise this Clause 6 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
7. LIMITATION OF LIABILITY
7.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding:
- £2,000,000 per Public Liability claim
- £2,000,000 per Professional Indemnity claim
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 loss.
7.2 The restrictions on liability in this Clause 7 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
7.4 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
7.5 Subject to Clause 7.4, the Supplier’s total liability to the Customer shall not exceed:
- £2,000,000 per Public Liability claim
- £2,000,000 per Professional Indemnity claim.
7.6 This Clause 7.6 sets out specific heads of excluded loss and exceptions from them:
- Subject to Clause 7.4, the types of loss listed in Clause 7.6(c) are wholly excluded by the parties, but the types of loss and specific losses listed in Clause 7.6(d) are not excluded.
- If any loss falls into one or more of the categories in Clause 7.6(c) and also falls into a category, or is specified, in Clause 7.6(d), then it is not excluded.
- The following types of loss are wholly excluded:
- 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
- indirect or consequential loss.
- The following types of loss and specific loss are not excluded:
- sums paid by the Customer to the Supplier pursuant to the Contract, in respect of any Services not provided in accordance with the Contract;
- wasted expenditure;
- additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with the Contract. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials;
- losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of the Supplier. For these purposes, third party claims shall include but not be limited to demands, fines, penalties, actions, investigations or proceedings, including but not limited to those made or commenced by subcontractors, the Supplier’s personnel, regulators and customers of the Customer; and
7.7 The Supplier has given commitments as to compliance of the Services with relevant specifications in Clause 3. In view of these commitments, the terms implied by 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.
7.8 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
7.9 No liability for claims not notified within 3 months.
7.10 This Clause 7 shall survive termination of the Contract.
8.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 1 months’ written notice. If the Customer terminates the Contract but fails to give 1 months’ written Notice, the Customer will be liable for the full amount specified in the Contract.
8.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
- the other party 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 other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.3 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:
- the Customer fails to pay any amount due under the Contract on the due date for payment or
- there is a change of control of the Customer.
8.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services 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 8.2(b) to Clause 8.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
9. CONSEQUENCES OF TERMINATION
9.1 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 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 any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier 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 the Contract.
9.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or 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.
9.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
10. LIABILITY UNDER THE REGULATORY REFORM (FIRE SAFETY) ORDER 2005 (“THE FSO”)
10.1 THE RESPONSIBLE PERSON
The Customer acknowledges that at no time the Supplier is the ‘Responsible Person’ as defined by Article 3 of the FSO. Unless expressly stated otherwise in writing the Customer is to be regarded as the Responsible Person.
10.2 ARTICLE 5(3) OF THE FSO – ‘PERSON WITH CONTROL’
The Supplier acknowledges that under Article 5 (3) of the FSO those responsibilities and duties imposed by the FSO on the Responsible Person are also to be imposed on any other person, who has, to any extent, control of those premises so far as the requirements relate to matters within his control.
10.3 EXTENT OF THE SUPPLIER’S CONTROL, DUTIES AND OBLIGATIONS
The Supplier shall only be considered be liable under Article 5(3) of the FSO in relation to matters that fall under his control pursuant to the terms of the Contract between the Customer and the Supplier.
The extent of the Supplier’s control and the duties and obligations imposed upon the Supplier shall be specified in Schedule 3 of the Purchase Order Form.
10.4 THE PREMISES
The ‘Premises’ (or part there of) must be clearly defined within the Purchase Order Form in order to highlight the extent of the area which fall under the Supplier’s control.
10.5 FIRE RISK ASSESSMENT/SURVEY/REPORT DRAFTS
The Fire Risk Assessment/Survey/Report drafts will be marked as drafts, both on the file name and the Fire Risk Assessment/Survey/Report itself. In the case of FRAs there will be a maximum of 10 working days before the draft becomes live when 10.6 below is instigated. Charges will be applicable for changes to the documentation as agreed with the customer.
10.6 INCEPTION DATE OF THE FIRE RISK ASSESSMENT/SURVEY/REPORT
The Fire Risk Assessment/Survey/Report should not be considered to be valid and should not be relied upon until signed by both the Supplier and the Customer.
The Fire Risk Assessment/Survey/Report will not be released to the Customer until payment in full has been received by the Supplier.
10.7 ON-GOING MANAGEMENT
Responsibility for the on-going management of the premises and even, if necessary, the decision to allow the premises to be used for its present purpose, remains with the Responsible Person, not the Supplier unless Schedule 3 of the Purchase Order Form stipulates otherwise.
10.8 NOTIFICATION OF RELEVANT FIRE SAFETY DETAILS
The Supplier should be notified of any fire safety details that the Customer deems relevant to the conducting of the Fire Risk Assessment/Survey/Report, including but not limited to:-
- Plans for the premises;
- Fire Strategy and other survey Documents;
- Details of any correspondence with the Fire Authority, (or any other Enforcing Authority) i.e. audits, Enforcement/Prohibition Notices, or Notices of Deficiencies;
- Records of testing and maintenance of any fire safety provisions within the premises;
- Records of Fire Evacuation drills (where applicable);
- Records of staff Fire Training;
- Records of portable electrical appliance testing and electrical installation/wiring tests or service schedules, and
- Records of servicing of lifts, boilers or other plants or equipment located within the premises
Such details are imperative to the Supplier in drafting his suitable and sufficient Fire Risk Assessment/Survey/Report, as such failing to provide these details will invalidate the Fire Risk Assessment/Survey/Report.
10.9 PERIOD OF VALIDATION
The Fire Risk Assessment/Survey/Report is only valid for a maximum period of 12 months from the date of inception discussed in clause 10.6, however, the actual period of validation will be stated in the Fire Risk Assessment/Survey/Report itself. Under Article 9(3)(b) of the FSO the Responsible Person is under a duty to review the Fire Risk Assessment.
10.10 REVISION OF THE FIRE RISK ASSESSMENT/SURVEY/REPORT
If the Customer believes that the Fire Risk Assessment/Survey/Report may require revision, the Supplier must be given the opportunity to alter/amend/review his original Assessment. If the Supplier is not given such an opportunity then he can longer be regarded as having on obligation in respect of the Fire Risk Assessment/Survey/Report as he does not have the necessary control.
10.11 SIGNIFICANT FINDINGS/ACTION PLAN SUMMARY
The Supplier’s recommendations are outlined in their Significant Findings/Action Plan Summary. The Customer is responsible for the implementation of the recommendations unless the Contract stipulates otherwise.
10.12 CO-OPERATION AND CO-ORDINATION
Both the Supplier and the Customer will co-operate and co-ordinate in order to comply with their respective obligations as per the Contract in order to satisfy the FSO. Where the Customer requires the Supplier’s co-operation and co-ordination in accordance to Article 22 the customer must:-
- Request confirmation in writing and allow the Supplier the opportunity to respond.
10.13 THE SUPPLIER’S OBLIGATIONS DO NOT EXTEND TO THE FOLLOWING:-
- Knowledge or Control those areas of the premises to which the Supplier was not given access.
- Knowledge or Control over any subsequent changes made to the premises.
- Knowledge or Control over any subsequent faults in the equipment, including any equipment checked by the Supplier at the time of the preparation of the Fire Risk Assessment/Survey/Report, but not subsequently.
- Knowledge or control over any subsequent deterioration in the premises or equipment.
- Knowledge or control over any ongoing management of the premises or of persons within the premises.
- Knowledge or control over the moveable items brought into the premises subsequent to the preparation of the Fire Risk Assessment/Survey/Report.
- Knowledge or control over the level of staffing and or training that the Customer gives to their staff.
- The Supplier has no knowledge or control over the implementation of any recommendations made by the Supplier in the course of an Assessment/Survey/Report and the Fire Risk Assessment Action Plan.
- The Fire Risk Assessment/Survey/Report and/or Action Plan is not to be relied upon by anybody else other than the Customer named on the Contract.
- The Supplier’s services and advice do not extend to advice in respect of building materials, fixtures and fittings or design or use of the premises, whether internal or external.
- The Supplier’s Assessment/Survey/Report does not include advice/information relating to The Dangerous Substances and Explosive Atmospheres Regulations 2002 (DSEAR).
10.14 REVISION TO FIRE RISK ASSESSMENT/SURVEY/REPORT
If there is a change in the structure of the premises/building, number of employees, layout or any other aspect that could impact upon fire safety the Responsible Person should ensure that no revision to the Assessment/Survey/Report is required.
10.15 IDENTIFICATION OF CLEAR AND OBVIOUS RISKS
If the Supplier identifies clear and obvious risks at a Premises that pose a danger to relevant persons, the Supplier may highlight these to the Customer in writing. However, the Supplier is under no contractual obligation to do so, therefore, this does not represent an obligation as defined under Article 5(3). Furthermore the Supplier is in no way liable or responsible for rectifying/remedying such risks.
The Supplier is in no way liable if the Customer or an Employee of the Customer does not carry out tasks relating to Fire Safety in connection with the Premises in accordance with the specialist training that was provided by the Supplier as specified in Schedule 2 of the Contract.
The Supplier may from time to time sub-contract aspects of the Order. The Supplier is in no way liable for the work carried out by the Sub-contractor. The Supplier will have carried out internal checks and quality assurance to ensure that the Sub-Contractor is suitable and qualified to carry out such works. Therefore, if the Sub-Contractor work is substandard, the Sub-Contractor will be liable for such work.
10.18 THE SUPPLIER’S RELIANCE UPON INFORMATION PROVIDED BY THE CUSTOMER
The Supplier is relying partially upon the information provided to him by the Customer, including but not limited to:-
- Fire Glazing
- Fire Door Compliance
11.1 FORCE MAJEURE.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
11.2 ASSIGNMENT AND OTHER DEALINGS.
- 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.
- 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.
- Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 11.3(b).
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 11.3; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
11.4 ENTIRE AGREEMENT
- The 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 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 misstatement based on any statement in the Contract.
- Nothing in this clause shall limit or exclude any liability for fraud.
Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
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 11.7 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 and shall be 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 sent by fax to its main fax number or sent by email to the address specified in the Purchase Order Form.
- Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
- 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 at the time recorded by the delivery service; and
- if sent by fax or 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 11.8(b)(iii), 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.
- This Clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
11.9 SUPPLIER’S INTELLECTUAL PROPERTY
- The Parties understand and agree that property in any capacity and all materials created by the Supplier (the “Intellectual Property”) is and shall remain the exclusive property of the Supplier.
- Notwithstanding what is stated above in Clause 11.9(A) of these Terms and Conditions, the Customer may retain a copy of any such material provided to the Customer by the Supplier, but may utilise them for its own use only.
11.10 THIRD PARTY RIGHTS
- 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.
- The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person
11.10 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.
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.