1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in the Netherlands when
banks are open for business.
Conditions: these terms and conditions as amended from time to time in accordance
with clause 15.7.
Contract: the contract between the Supplier and the Customer for the supply of Goods
and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning set out in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 14.1.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any formula that is
agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights,
trade marks, business names and domain names, rights in get-up, goodwill and the right
to sue for passing off, rights in designs, database rights, rights to use, and protect the
confidentiality of, confidential information (including know-how), 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
Order: the Customer's order for the supply of Goods and/or Services, as set out in the
Customer's purchase order form, or the Customer's written acceptance of the Supplier's
quotation, or in the Customer’s e-mail or fax order or as detailed in the Customer’s
telephoned order to the Supplier, 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 below.
Service Specification: the description or specification for the Services provided in writing
by the Supplier to the Customer.
Infinity Wax Europe is registered in the Netherlands.
Supplier Materials: has the meaning set out in clause 8.1(g). 1.2 Construction. In these
Conditions, the following rules apply:
. (a) a person includes a natural person, corporate or unincorporated body (whether or
not having separate legal personality);
. (b) a reference to a party includes its successors or permitted assigns;
. (c) a reference to a statute or statutory provision is a reference to such statute or
statutory 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;
. (d) 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; and
. (e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
. 2.1 The Order constitutes an offer by the Customer to purchase Goods and/or
Services in accordance with these Conditions.
. 2.2 The Order shall only be deemed to be accepted when the Supplier issues written
acceptance of the Order or the Supplier does something consistent with an
intention to complete the Order at which point and on which date the Contract
shall come into existence.
. 2.3 The Contract constitutes the entire agreement between the parties. The
Customer acknowledges that it has not relied on any statement, promise,
representation, assurance or warranty made or given by or on behalf of the
Supplier which is not set out in the Contract.
. 2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier
and any descriptions of the Goods or illustrations or descriptions of the Services
contained in the Supplier's catalogues or brochures are issued or published for
the sole purpose of giving an approximate idea of the Services and/or Goods
described in them. They shall not form part of the Contract or have any
. 2.5 These Conditions apply to the Contract to the exclusion of any other terms that
the Customer seeks to impose or incorporate, or which are implied by trade,
custom, practice or course of dealing.
. 2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid
for a period of 60 days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services, except
where application to one or the other is specified.
. 3.1 Unless produced to order for the Customer the Goods are described in the
Supplier's catalogue or on its website.
. 3.2 To the extent that the Goods are to be manufactured to order for the Customer,
3.2.1 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 and other professional costs and
expenses) suffered or incurred by the Supplier 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. 3.2.2 the Customer acknowledges that the Supplier shall, in manufacturing
such Goods, rely entirely on information provided by the Customer;
. 3.2.3 the Supplier shall have no liability in relation to any use of the Goods other than
for those purposes which the Supplier notifies the Customer in writing the Goods
are suitable for; and
. 3.2.4 the Customer shall pass on details of the approved uses of the Goods to its
customers or any third party to whom it supplies the Goods together with any
other information or instructions provided by the Supplier and shall ensure that
such customers/third parties comply with such information and instructions.
. 3.3 The Supplier reserves the right to amend the Goods Specification if required by
any applicable statutory or regulatory requirements.
. 3.4 The Customer shall not without the prior written consent of the Supplier;
. 3.4.1 replace, alter, deface, obscure or obliterate any letters, numbers or markings
whatsoever which appear on or are fixed to the Goods or any of their packaging;
. 3.4.2 dilute, alter, mix or amend the make-up of any Goods or their packaging; or
. 3.4.3 repackage any Goods, and the Supplier shall have no liability in relation to any
Goods in relation to which the Customer is in breach of this clause 3.4
. 3.5 The Customer shall not sell or otherwise supply the Goods to any third party for
use outside of the United Kingdom without the prior written permission of the
Supplier. The Supplier shall not (regardless of whether permission for the sale has
been given under this clause or otherwise) have any liability for any Goods sold or
otherwise supplied by the Customer for use outside of the United Kingdom.
. 3.6 It is the responsibility of the Customer to determine the suitability of any Goods
and/or services and the Customer shall apply its own Quality Control Testing and
Batch Testing to the Goods and, on demand, provide the Supplier with the results of
such testing and any retained sample of the Goods.
. 3.7 Any advice given by the Supplier to the Customer in relation to the Goods, their
use and/or application is given to the Supplier’s best knowledge and belief but
shall not be binding in any way on the Supplier and the Supplier shall have no
liability in relation to such advice unless given in writing by a director of the
. 3.8 In the event that the Goods are supplied in Intermediate Bulk Containers (IBCs)
the following shall apply: (a) the IBCs shall be at the Customer’s risk and they
shall ensure that they are fully insured to their replacement cost; (b) the
Customer shall provide safe and sufficient facilities for unloading, storing and
loading of all IBCs and will indemnify the Supplier against any damages, claims or
costs arising out of a breach of this condition; (c) the Customer shall be allowed
up to 6 months free on-site usage of each IBC after which the Customer shall
make the IBCs available for collection or return the same to the Supplier. In the
event that each IBC is not made available for collection or returned in accordance
with this clause or if the IBC is not in a satisfactory condition for re-use the
Supplier shall charge and the Customer shall pay a fee of £50 plus VAT for each
IBC on payment of which title in the relevant IBC shall pass to the Customer.
. 3.9 The Customer hereby agrees to use IBCs only for the discharge of products
delivered to the Customer by the Supplier for that specific delivery and at no time
shall other material be placed in any IBC. The Supplier reserves the right to
charge for the cleaning or replacement of any IBC if not returned in suitable
condition for immediate reuse.
. 3.9.1The Customer shall not, unless given prior approval, sell any of the Suppliers
products or services at a price lower than the MRRP as set out in the Suppliers
published selling/ retail price list as at the date of delivery of the product.
4. DELIVERY OF GOODS
. 4.1 The Supplier shall ensure that:
. (a) each delivery of the Goods is accompanied by a delivery note which shows
the date of the Order, all relevant Customer and Supplier reference
numbers, the type and quantity of the Goods, special storage instructions
(if any) and, if the Order is being delivered by instalments, the outstanding
balance of Goods remaining to be delivered; and
. (b) if the Supplier requires the Customer to return any returnable packaging
material to the Supplier 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
. 4.2 If it is agreed that the Supplier shall deliver the Goods to the Customer then
deliver shall be made to the location set out in the Order or such other location
as the parties
may agree and such location shall be the Delivery Location if it is agreed that the
Customer shall collect the Goods from the Supplier's premises or such other location
as may be advised by the Supplier before delivery then such location shall be the Delivery Location
. 4.3 If the Supplier is delivering the Goods it shall do so at any time after they are
. 4.4 If the Customer is collecting the Goods it shall do so within five days of being
advised by the Supplier that the Goods are ready for collection.
. 4.5 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery
Location (if the Supplier is delivering the Goods) or the completion of loading of
the Goods at the Delivery Location (if the Customer is collecting the Goods).
. 4.6 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 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.
. 4.7 If the Supplier fails to deliver 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 the Customer's
failure to provide the Supplier with adequate delivery instructions for the Goods
or any relevant instruction related to the supply of the Goods.
. 4.8 If the Customer fails to accept or take delivery of the Goods within 5 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 by the
Supplier's failure to comply with its obligations under the Contract in respect of
. (a) delivery of the Goods shall be deemed to have been completed at 9.00 am
on the sixth Business Day following the day on which the Supplier notified
the Customer that the Goods were ready; and
. (b) the Supplier shall store the Goods until delivery takes place, and charge the
Customer for all related costs and expenses (including insurance and any
. 4.9 If 10 Business Days after the Supplier notified the Customer that the Goods were
ready for delivery the Customer has not taken or 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.
4.10 The Customer shall not be entitled to reject the Goods if the Supplier delivers up
to and including 10 per cent more or less than the quantity of Goods ordered, but
a pro- rata adjustment shall be made to the Order invoice on receipt of notice
from the Customer that the wrong quantity of Goods was delivered.
. 4.11 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.
5. QUALITY OF GOODS
. 5.1 Unless stated otherwise the Supplier warrants that on delivery, and for a period
of 12 months from the date of delivery (warranty period), the Goods shall:
. (a) conform in all material respects with their description in the Goods
. (b) be free from material defects in design, material and workmanship;
. (c) be of satisfactory quality (within the meaning of the Sale of Goods Act
. (d) be fit for any purpose held out by the Supplier in writing.
. 5.2 Subject to clause 5.3, if:
. (a) the Customer gives notice in writing during the warranty period 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;
. (b) the Supplier is given a reasonable opportunity of examining such Goods
and/or any sample used for the testing of the Goods; and
. (c) 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, replace the defective Goods, or refund the price of the
defective Goods in full.
. 5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty
in clause 5.1 if:
. (a) the Customer makes any further use of such Goods after giving a notice in
accordance with clause 5.2;
. (b) the defect arises because the Customer failed to follow the Supplier's oral
or written instructions as to the storage or use of the Goods or (if there
are none) good trade practice;
(c) the defect arises as a result of the Supplier following any Goods Specification
supplied by the Customer;
. (d) the Customer alters or repairs such Goods without the written consent of the
. (e) the defect arises as a result of fair wear and tear, willful damage, negligence, or
abnormal working conditions;
. (f) the Goods differ from the Goods Specification as a result of changes made to
ensure they comply with applicable statutory or regulatory standards.
. 5.4 Except as provided in this clause 5, the Supplier shall have no liability to the
Customer in respect of the Goods' failure to comply with the warranty set out in
. 5.5 The terms of these Conditions shall apply to any repaired or replacement Goods
supplied by the Supplier under clause 5.2.
. 5.6 In the event of any dispute in relation to the quality of the Goods the results of
the Supplier’s testing of the Goods or any sample thereof shall be binding on the
6. TITLE AND RISK
. 6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
. 6.2 Title to the Goods shall not pass to the Customer until the earlier of:
. (a) the Supplier receives payment in full (in cash or cleared funds) for the
Goods and any other goods that the Supplier has supplied to the Customer
in which case title to the Goods shall pass at the time of payment of all
such sums; and
. (b) 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.
. 6.3 Until title to the Goods has passed to the Customer, the Customer shall:
. (a) store the Goods separately from all other goods held by the Customer so
that they remain readily identifiable as the Supplier's property;
. (b) not remove, deface or obscure any identifying mark or packaging on or
relating to the Goods or any IBC;
. (c) 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
. (d) notify the Supplier immediately if it becomes subject to any of the events
listed in clause 13.1(b) to clause 13.1(m); and
. (e) give the Supplier such information relating to the Goods as the Supplier
may require from time to time.
. 6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary
course of its business (but not otherwise) before the Supplier receives payment
for the Goods. However, if the Customer resells the Goods before that time:
. (a) it does so as principal and not as the Supplier’s agent; and
. (b) title to the Goods shall pass from the Supplier to the Customer immediately
before the time at which resale by the Customer occurs.
. 6.5 If before title to the Goods passes to the Customer the Customer becomes subject
to any of the events listed in clause 13.1(b) to clause 13.1(m), then, without
limiting any other right or remedy the Supplier may have:
. (a) the Customer's right to resell Goods or use them in the ordinary course of
its business ceases immediately; and
. (b) the Supplier may at any time:
. (i) require the Customer to deliver up all Goods in its possession which
have not been resold, or irrevocably incorporated into another
. (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. SUPPLY OF SERVICES
. 7.1 The Supplier shall provide the Services to the Customer in accordance with the
Service Specification in all material respects.
. 7.2 The Supplier shall use all reasonable endeavors to meet any performance dates
for the Services agreed, but any such dates shall be estimates only and time shall
not be of the essence for the performance of the Services.
. 7.3 The Supplier shall have the right to make any changes to the Services which are
necessary to comply with any applicable law or safety requirement, or which do
not materially affect the nature or quality of the Services, and the Supplier shall
notify the Customer in any such event.
. 7.4 The Supplier warrants to the Customer that the Services will be provided using
reasonable care and skill.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
. (a) ensure that the terms of the Order and (if submitted by the Customer) the Goods
Specification are complete and accurate;
. (b) co-operate with the Supplier in all matters relating to the Services;
(c) 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;
. (d) provide the Supplier with such information and materials as the Supplier may
reasonably require to supply the Services, and ensure that such information is
accurate in all material respects;
. (e) prepare the Customer's premises for the supply of the Services;
. (f) obtain and maintain all necessary licenses, permissions and consents which may be
required for the Services before the date on which the Services are to start;
. (g) keep and maintain 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
. (h) return any unwanted Goods within 2 weeks from Delivery provided always that
such returns shall be subject to a 25% administration charge (assessed against
the full price of the Goods) and shall only be accepted for return with the prior
written consent of the Supplier. For the avoidance of doubt no Goods made
specifically for the Customer shall be accepted for return; and
. (i) ensure that any drums and other packaging to be returned to the Supplier are
returned with their original closures and the Customer acknowledges that the
Supplier will not accept any drums for return without original closures.
8.2 If the Supplier's performance of any of its obligations in respect of the Services is
prevented or delayed by any act or omission by the Customer or failure by the Customer
to perform any relevant obligation (Customer Default):
. (a) the Supplier shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays
the Supplier's performance of any of its obligations;
. (b) 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
(c) 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
9. CHARGES AND PAYMENT
. 9.1 The price for Goods shall be the price set out in the Order or, if no price is quoted,
the price set out in the Supplier's published price list as at the date of delivery.
The price of the Goods is exclusive of all costs and charges of packaging,
insurance, transport of the Goods, which shall be paid by the Customer when it
pays for the Goods.
. 9.2 The charges for Services shall be those agreed between the parties in the Order
. 9.3 The Supplier reserves the right to increase the price of the Goods, by giving one
month’s notice to the Customer at any time before delivery, to reflect any
increase in the cost of the Goods to the Supplier that is due to:
. (a) any factor beyond the control of the Supplier (including foreign exchange
fluctuations, increases in taxes and duties, and increases in labour,
materials and other manufacturing costs);
. (b) any request by the Customer to change the delivery date(s), quantities or
types of Goods ordered, or the Goods Specification; or
. (c) any delay caused by any instructions of the Customer in respect of the
Goods or failure of the Customer to give the Supplier adequate or accurate
information or instructions in respect of the Goods.
. 9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time
after completion of delivery.
. 9.5 Unless otherwise agreed in writing, the Customer shall pay each invoice
submitted by the Supplier:
. (a) within 30 days of the date of the invoice; and
. (b) in full and in cleared funds to a bank account nominated in writing by the
. time for payment shall be of the essence of the Contract.
. 9.6 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.
. 9.7 If the Customer fails to make any payment due to the Supplier under the Contract
by the due date for payment, then the Customer shall pay interest on the
overdue amount at the rate of 4% per annum above National Westminster Bank's
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.
9.8 The Customer shall pay all amounts due under the Contract in full without any setoff,
counterclaim, deduction or withholding except as required by law. The Supplier
may, without limiting its other rights or remedies, set off any amount owing to it by the
Customer against any amount payable by the Supplier to the Customer.
10. INTELLECTUAL PROPERTY RIGHTS
. 10.1 All Intellectual Property Rights in the Goods, any formula used to produce the
Goods and/or arising out of or in connection with the Services shall be owned by
the Supplier. For the avoidance of doubt this clause shall apply in the event that
Goods have been made to a specification of the Customer or to replicate or
match a product produced by a third party.
. 10.2 The Customer acknowledges that, in respect of any third party Intellectual
Property Rights in the Services, the Customer's use of any such Intellectual
Property Rights is conditional on the Supplier obtaining a written license from the
relevant licensor on such terms as will entitle the Supplier to license such rights
to the Customer.
. 10.3 All Supplier Materials are the exclusive property of the Supplier.
A party (receiving party) shall keep in strict confidence all technical or commercial
know-how, specifications, inventions, processes or initiatives which are of a
confidential nature and have been disclosed to the receiving party by the other party
(disclosing party), its employees, agents or subcontractors, and any other
confidential information concerning the disclosing party's business, its products and
services which the receiving party may obtain. The receiving party shall only disclose
such confidential information to those of its employees, agents and subcontractors
who need to know it for the purpose of discharging the receiving party's obligations
under the Contract, and shall ensure that such employees, agents and
subcontractors comply with the obligations set out in this clause as though they
were a party to the Contract. The receiving party may also disclose such of the
disclosing party's confidential information as is required to be disclosed by law, any
governmental or regulatory authority or by a court of competent jurisdiction. This
clause 11 shall survive termination of the Contract.
12. LIMITATION OF LIABILITY:
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
. (a) death or personal injury caused by its negligence, or the negligence of its
employees, agents or subcontractors;
. (b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act
1982 (title and quiet possession);
. (d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and
quiet possession); or
. (e) defective products under the Consumer Protection Act 1987.
. 12.2 Subject to clause 12.1:
. (a) the Supplier shall under no circumstances whatever be liable to the
Customer, whether in contract, tort (including negligence), breach of
statutory duty, or otherwise, for any loss of profit, or any indirect or
consequential loss arising under or in connection with the Contract;
. (b) the Supplier's total liability to the Customer in respect of all losses arising
under or in connection with the Contract, whether in contract, tort
(including negligence), breach of statutory duty, or otherwise, for which
the Supplier is not insured shall in no circumstances exceed £10,000; and
. (c) the Supplier's total liability to the Customer in respect of all losses arising
under or in connection with the Contract, whether in contract, tort
(including negligence), breach of statutory duty, or otherwise, for which
the Supplier is insured shall in no circumstances exceed £2,000,000.
. 12.3 The Supplier shall not be liable for any claim for none or short delivery unless
such claim has been received within 3 Business Days of the date of Delivery.
. 12.4 The Supplier shall have no liability in relation to any claim for damage to or loss
of the Goods in any consignment unless such claim is notified to the Supplier
within 3 Business Days of Delivery.
. 12.5 In the event that the Customer wishes to claim that any of the Goods are faulty
or do not meet the Goods Specification the Customer shall, at the Supplier’s
request, provide the Supplier with a sample of the Goods (or any part thereof) in
such form as the Supplier shall require and the Supplier shall, at its own cost,
have the right to have such sample independently tested and the results of such
independent testing shall be determinative as to whether the Goods are faulty
and/or comply with the Goods Specification.
. 12.6 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.
. 12.7 This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, each party may terminate the
Contract with immediate effect by giving written notice to the other party if:
. (a) the other party commits a material breach of its obligations under this Contract
and (if such breach is remediable) fails to remedy that breach within 30 days after
receipt of notice in writing to do so;
. (b) the other party suspends, or threatens to suspend, payment of its debts or is
unable to pay its debts as they fall due or admits inability to pay its debts or
(being a company or limited liability partnership) is deemed unable to pay its
debts within the meaning of section 123 of the Insolvency Act 1986 or (being an
individual) is deemed either unable to pay its debts or as having no reasonable
prospect of so doing, in either case, within the meaning of section 268 of the
Insolvency Act 1986 or (being a partnership) has any partner to whom any of the
. (c) the other party commences negotiations with all or any class of its creditors with a
view to rescheduling any of its debts, or makes a proposal for or enters into any
compromise or arrangement with its creditors other than (where a company) for
the sole purpose of a scheme for a solvent amalgamation of that other party with
one or more other companies or the solvent reconstruction of that other party;
. (d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for
or in connection with the winding up of the other party (being a company) other
than for the sole purpose of a scheme for a solvent amalgamation of the other
party with one or more other companies or the solvent reconstruction of that
. (e) the other party (being an individual) is the subject of a bankruptcy petition or
. (f) a creditor or encumbrancer of the other party attaches or takes possession of, or a
distress, execution, sequestration or other such process is levied or enforced on
or sued against, the whole or any part of its assets and such attachment or
process is not discharged within 14 days;
. (g) an application is made to court, or an order is made, for the appointment of an
administrator or if a notice of intention to appoint an administrator is given or if
an administrator is appointed over the other party (being a company);
. (h) the holder of a qualifying charge over the assets of the other party (being a
company) has become entitled to appoint or has appointed an administrative
. (i) a person becomes entitled to appoint a receiver over the assets of the other party
or a receiver is appointed over the assets of the other party;
. (j) any event occurs, or proceeding is taken, with respect to the other party in any
jurisdiction to which it is subject that has an effect equivalent or similar
to any of the events mentioned in clause 13.1(b) to clause 13.1(i) (inclusive);
. (k) the other party suspends, threatens to suspend, ceases or threatens to cease to
carry on, all or substantially the whole of its business;
. (l) the other party'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; or
. (m) the other party (being an individual) dies or, by reason of illness or incapacity
(whether mental or physical), is incapable of managing his own affairs or
becomes a patient under any mental health legislation.
. 13.2 Without limiting its other rights or remedies, the Supplier may terminate the
Contract with immediate effect by giving written notice to the Customer if the
Customer fails to pay any amount due under this Contract on the due date for
. 13.3 Without limiting its other rights or remedies, 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 this Contract on the due date for payment, the
Customer becomes subject to any of the events listed in clause 13.1(b) to clause
13.1(m), or the Supplier reasonably believes that the Customer is about to
become subject to any of them.
. 13.4 On termination of the Contract for any reason:
. (a) 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 yet been submitted, the Supplier
shall submit an invoice, which shall be payable by the Customer
immediately on receipt;
. (b) 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 this Contract;
. (c) the accrued rights and remedies of the parties as at termination shall not
be affected, including the right to claim damages in respect of any breach
of the Contract which existed at or before the date of termination or
. (d) clauses which expressly or by implication have effect after termination shall
continue in full force and effect.
14. FORCE MAJEURE
. 14.1 For the purposes of this Contract, Force Majeure Event means an event beyond
the reasonable control of the Supplier including but not limited to strikes, lockouts or
other industrial disputes (whether involving the workforce of the Supplier
or any other party), failure of a utility service or transport network, act of God,
war, riot, civil commotion, malicious damage, compliance with any law or
governmental order, rule, regulation or direction, accident, breakdown of plant
or machinery, fire, flood, storm or default of suppliers or subcontractors or
unavailability of any raw material or other element of the Goods .
. 14.2 The Supplier shall not be liable to the Customer as a result of any delay or failure
to perform its obligations under this Contract as a result of a Force Majeure
. 14.3 If the Force Majeure Event prevents the Supplier from providing any of the
Services and/or Goods for more than 6 weeks, the Supplier shall, without limiting
its other rights or remedies, have the right to terminate this Contract
immediately by giving written notice to the Customer.
. 15.1 Assignment and other dealings.
. (a) The Supplier may at any time assign, transfer, mortgage, charge,
subcontract or deal in any other manner with all or any of its rights under
the Contract and may subcontract or delegate in any manner any or all of
its obligations under the Contract to any third party.
. (b) The Customer shall not, without the prior written consent of the Supplier,
assign, transfer, charge, subcontract, declare a trust over or deal in any
other manner with all or any of its rights or obligations under the Contract.
. 15.2 Notices.
. (a) Any notice or other communication given to a party under or in connection
with this 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 or sent by prepaid first-class post or other next working day
delivery service, or by commercial courier, fax or e-mail.
. (b) A notice or other communication shall be deemed to have been received: if
delivered personally, when left at the address referred to in clause 12.2(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 e-mail, one Business Day
(c) The provisions of this clause shall not apply to the service of any proceedings or
other documents in any legal action
. 15.3 Severance.
. (a) 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 partprovision
under this clause shall not affect the validity and enforceability
of the rest of the Contract.
. (b) If one party gives notice to the other of the possibility that any provision or
part-provision of this Contract is invalid, illegal or unenforceable, the
parties shall negotiate in good faith to amend such provision so that, as
amended, it is legal, valid and enforceable, and, to the greatest extent
possible, achieves the intended commercial result of the original provision.
. 15.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in
writing and shall not be deemed to be a waiver of any subsequent breach or
default. No failure or delay by a party in exercising any right or remedy under the
Contract or by law shall constitute a waiver of that or any other right or remedy,
nor prevent or restrict its 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.
. 15.5 No partnership or agency. Nothing in the Contract is intended to, or shall be
deemed to, establish any partnership or joint venture between any of the parties,
nor constitute either party the agent of another party for any purpose. Neither
party shall have authority to act as agent for, or to bind, the other party in any
. 15.6 Third parties. A person who is not a party to the Contract shall not have any
rights to enforce its terms.
. 15.7 Variation. Except as set out in these Conditions, no variation of the Contract,
including the introduction of any additional terms and conditions shall be
effective unless it is agreed in writing and signed by the Supplier.
. 15.8 Governing law. This agreement and any dispute or claim arising out of or in
connection with it or its subject matter or formation (including non-contractual
disputes or claims) shall be governed by and construed in accordance with the
law of Scotland.
. 15.9 Jurisdiction Each party irrevocably agrees that the courts of Scotland shall have
exclusive jurisdiction to settle any dispute or claim arising out of or in connection
with this Contract or its subject matter or formation (including non- contractual
disputes or claims).