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Terms and conditions
Lubricants – Terms & Conditions of Sale for Business Customers
These Conditions shall apply to and be incorporated in all orders, offers, confirmations and agreements between You and Us and shall form the basis of the Contract that will govern Our dealings with You. They apply to the supply of Goods and Services to Business Customers only (as defined below). Other terms and conditions presented by You shall have no controlling or legal effect, whether contained in any purchase orders, invoices, bills of lading, confirmations, or any other documentation (whether in written or in electronic form), nor shall prior dealings or usage in the trade in any way affect this agreement or any other agreement between You and Us.
Any variation to Our Contract or these Conditions, and any representation about the Goods and/or Services, shall have no effect and shall not form part of the Contract unless agreed in writing by Us, acting through one of Our authorised employees (which do not include any of our telephone sales staff or sales representatives). If You have any particular requirements then You must make them clear at the time You place Your order and if (at Our discretion) We agree to meet those requirements then We will provide You.
The latest version of these Conditions may be obtained at any time from our website https://certaslubricantsolutions.com/ if we make any substantial changes to these terms these may be flagged on your delivery note and so you should check the reverse of your delivery notes regularly.
We draw Your attention, particularly to the provisions of clause 12 (Limitation of liability).
1. DEFINITIONS AND INTERPRETATION
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.3.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.8.
Contract: the contract between Us and You for the supply of Goods and/or Services in accordance with these Conditions.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 15.
Goods: the goods (or any part of them) set out in the Order.
Good Industry Practice: the exercise of such high degree of skill and care as would reasonably be expected from an appropriately skilled and experienced person with expertise in the relevant area, including the handling of and dealing with goods the same as or similar to the Goods.
Goods Specification: any specification for the Goods, including any relevant, that is agreed in writing by us.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Mixed: the mixing or placing the Goods with goods of the same kind together (whether by placing goods in the same tank or by placing individual packages containing goods together or in the same place or otherwise) in such a manner as but for the provisions of clause 6.6 would or might have rendered it impossible or difficult to identify the Goods separately.
Order: Your order for the supply of Goods and/or Services, as set out in the Your purchase order form, or Your written acceptance of Our quotation, or verbally over the telephone, as the case may be.
Regulations: means either The Control of Pollution (Oil Storage) (England) Regulations 2001, Control of Pollution (Oil Storage) (Wales) Regulations 2016, The Water Environment (Controlled Activities) (Scotland) Regulations 2011 or Control of Pollution (Oil Storage) Regulations (Northern Ireland) 2010 as relevant to you.
Restricted Party: a person or company identified as such from time to time by any government or legal authority under applicable trade sanctions, export controls, anti-money laundering, non-proliferation, anti-terrorism and similar laws as a person with whom trade or financial dealings and transactions are prohibited or restricted or as a person to whom goods may not be supplied.
Services: the services supplied by Us to You as set out in the Service Specification and any advice provided to You by Us.
Service Specification: any document, method, statement or variant of which details the services to be performed, including any advice given in relation to the supply of the Goods.
Special Order Goods: Goods identified by Us on the Order, the Goods Specification or written acceptance pursuant to clause 2.3 as being special order goods.
Supplier Materials: has the meaning given in clause 8.1.8.
We, Us or Our: Certas Energy UK Limited trading as Certas Lubricant Solutions (Company No: 4168225) of 1st Floor, Allday House, Warrington Road, Birchwood, Cheshire, WA3 6GR or any brand or trading division of, or any company which is controlled by or under common control with, Certas Energy UK Limited that is to supply the Goods (and/or Services) to you under a Contract;
You or Your: the person, company or any other type of organisation that enters into a Contract to purchase Goods (and Services) from us (and who will be a Business Customer);
1.2. A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.3. A reference to a party includes its personal representatives, successors and permitted assigns.
1.4. 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.
1.5. Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6. A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1. The Order constitutes an offer by You to purchase Goods and/or Services in accordance with these Conditions. You are responsible for ensuring that the terms of the Order and applicable Good and/or Service Specifications are complete and accurate.
2.2. If You have any general comments or queries regarding the Goods (and/or Services) then they must raise these issues before placing the order. Whilst our sales personnel may provide recommendations or advice in relation to the Goods they are not consultants and are not able to provide technical advice as to particular products or performance issues. Any specific or technical queries should be addressed in writing to Us. You acknowledge that any response provided by Us to such queries will be given only to the best of their knowledge and belief and without any liability on the part of Us. Any advice which is provided to you (whether in writing or otherwise) should be verified by yourselves whilst making your own independent decisions in relation to the Product you require.
2.3. The Order shall only be deemed to be accepted when We issue an acceptance of the same (a text message, email or phone call confirming acceptance from Us shall constitute written acceptance for the purposes of this clause only) or by Our performance of the Order at which point and on which date the Contract shall come into existence (Commencement Date). Subject to clause 13, for the avoidance of doubt You shall not be entitled to withdraw an Order following the Commencement Date (particularly if the Order relates to Special Order Goods).
2.4. We shall be entitled to reject any order and terminate a Contract if We obtain a credit reference against You which does not meet Our minimum requirements.
2.5. Any samples, drawings, descriptive matter or advertising issued by Us and any descriptions of the Goods or illustrations or descriptions of the Services contained in Our 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 contractual force.
2.6. These Conditions apply to the Contract to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7. Any quotation given by Us shall not constitute an offer, and is only valid for a period of up to 30 days from its date of issue. We shall be entitled to reduce the time period noted in this clause if any price rises are caused by matters that are outside of Our direct control (including but not limited to price rises by any suppliers to Us).
2.8. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.9. We are ISO 14001 registered, and under Our ISO 9001 accreditation all Orders shall be processed in accordance with such accreditation unless specifically stated otherwise or if it falls outside the scope of the accreditation.
3.1. The Goods are described on Our website as modified by any applicable Goods Specification.
3.2. We reserve the right to amend any Goods Specification if We believe it is required by any applicable statutory or regulatory requirement and generally make any minor modifications to the specification of the Goods that they consider necessary or desirable (and which should not have any material adverse effect on the performance of the Goods), and We shall notify You in any such event.
4. DELIVERY OF GOODS
4.1. We shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods. If there are any storage instructions they will be detailed on the data sheet provided with the delivery note or when the Goods are ordered.
4.2. We shall deliver the Goods to (or You shall collect the goods from) the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after We notify You that the Goods are ready (in the case of Your collection of the goods, they must be collected within 3 Business Days of Us notifying You that the Goods are ready).
4.3. Delivery of the Goods shall be completed on the completion of loading or unloading (as the case may be) of the Goods at the Delivery Location. Should any vehicles or means of transport used by or on behalf of Us be unable to reach the Delivery Location using their own power, the product shall be delivered to the nearest accessible location chosen at Our sole discretion.
4.4. Subject to clauses 5.1 and 5.3, You must ensure that You inspect the Goods to determine whether they are defective within 24 hours of delivery and shall ascertain through reasonable visual inspection that (i) the correct Goods were delivered, (ii) the quantity is accurate, and (iii) where applicable, the labels or other documents relating to the Goods correspond to the product ordered. You acknowledge that We are unable to inspect all Goods as some are contained in sealed containers and cannot be opened by Us in advance due to the risk of contamination. It is therefore important that You inspect the Goods within 24 hours of delivery in accordance with this clause.
4.5. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. We shall not be liable for any damage, loss or expense whatsoever resulting from late delivery. In the event of delayed delivery, We shall be granted reasonable additional grace time to satisfy Our obligations. If such grace period is exceeded, You shall be entitled to terminate the applicable agreement. For product delivered in instalments, delay or failure by Us to deliver any one or more instalments or any claim or complaint made by You shall not excuse Your performance or You to reject or cancel any further instalments or to cancel any further agreement.
4.6. We 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 Your failure to provide Us with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods. If We fail to deliver the Goods, our liability shall be limited to the monies actually paid by your to us for the Goods that we have failed to deliver.
4.7. If You fail to take or accept delivery of the Goods within 24 hours of Us notifying You that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Our failure to comply with Our obligations under the Contract in respect of the Goods:
4.7.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which We notified You that the Goods were ready; and
4.7.2. We (or Our courier) shall store the Goods until delivery takes place, and charge You for all related costs and expenses (including insurance).
4.8. If ten Business Days after We have notified You that the Goods were ready for delivery, You have not taken or accepted delivery of them, We may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to You for any excess over the price of the Goods or charge You for any shortfall below the price of the Goods.
4.9. We 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 You to cancel any other instalment.
4.10. In respect of any delivery to which the Regulations apply, You shall ensure that such Regulations are complied with before and during delivery, and in particular, shall ensure the strict observance of regulation 16 of the Regulations. You shall indemnify Us against any losses We suffer as a result of You not complying with this clause 4.10 or the Regulations in any manner.
4.11. In Our absolute discretion, We may allow Goods to be returned (provided they are not Special Order Goods) within 14 days of delivery and You may be issued with a refund, however, such returns must be at Your cost and You shall be required to reimburse Us for any costs and expenses We incur in connection with such returns.
5. QUALITY OF GOODS
5.1. We warrant that on delivery the Goods shall conform in all material respects with their description as set out in an accepted Order and Goods Specification. Unless otherwise agreed in writing we give no other warranty in respect of the Goods and all warranties, conditions and other terms implied by statute or common law (save for the condition implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
5.2. Subject to clause 5.4, We shall, at Our option, replace the defective Goods, issue a credit note or refund the price of the defective Goods in full if:
5.2.1. You give notice in writing within 24 hours of delivery that some or all of the Goods (before any of the Goods has been consumed, resold, altered or processed) do not comply with the warranty set out in clause 5.1. Such notification shall provide detailed information as to the claimed variation, defect or shortage;
5.2.2. We are given a reasonable opportunity of examining such Goods; and
5.2.3. You (if asked to do so by Us) return such Goods to Our place of business at Our cost.
5.3. We shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
5.3.1. You make any further use of such Goods after giving a notice in accordance with clause 5.3;
5.3.2. the defect arises because You failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) Good Industry Practice;
5.3.3. the defect arises as a result of Us following any Goods Specification supplied by You or you generally misuse the Goods or do not follow Good Industry Practice when making use of them;
5.3.4. You attempt to alter such Goods without the written consent of Us;
5.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.3.6. 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 standards.
5.4. Except as provided in this clause 5, We shall have no liability to You in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5. The terms of these Conditions shall apply to any replacement Goods supplied by Us.
6. TITLE AND RISK
6.1. The risk in the Goods shall pass to You on completion of delivery at the Delivery Location.
6.2. Title to the Goods shall not pass to You until the earlier of:
6.2.1. We receive payment in full (in cash or cleared funds) for the Goods and any other goods that We have supplied to You 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
6.2.2. You resell the Goods, in which case title to the Goods shall pass to You at the time specified in clause 6.4.
6.3. Until title to the Goods has passed to You, You shall:
6.3.1. store the Goods (at their own cost) separately from all other goods held by the You so that they remain readily identifiable as Our property and in accordance with Good Industry Practice;
6.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Our behalf from the date of delivery;
6.3.4. follow our oral or written instructions in relation to the storage of the Goods;
6.3.5. keep the Goods free from any charge, lien or other encumbrance;
6.3.6. notify Us immediately if You become subject to any of the events listed in clause 13.1.2 to clause 13.1.4; and
6.3.7. give Us such information relating to the Goods as We may reasonably require from time to time.
6.4. Subject to clause 6.5, You may resell or use the Goods in the ordinary course of Your business (but not otherwise) before We receive payment for the Goods. However, if You resell the Goods before that time:
6.4.1. it does so as principal and not as Our agent; and
6.4.2. title to the Goods shall pass from Us to You immediately before the time at which resale by You occurs.
6.5. If before title to the Goods passes to You and You become subject to any of the events listed in clause 13.1.2 to clause 13.1.4, then, without limiting any other right or remedy the We may have:
6.5.1. Your right to resell Goods or use them in the ordinary course of Your business ceases immediately; and
6.5.2. We may at any time:
184.108.40.206. require You to deliver up all Goods in Your possession which have not been resold, or irrevocably incorporated into another product; and
220.127.116.11. if You to do so promptly, enter any of Your premises or of any third party where the Goods are stored in order to recover them.
6.6. If while the property in any of the Goods is vested in Us, the Goods are Mixed with any other goods the property in which (whether general or special) is vested in You then and in every such case:
6.6.1. the Goods as Mixed shall be treated and identified as belonging partly to Us and partly to You according to the respective quantities so Mixed (hereinafter referred to as “the Supplier’s part” and “the Customer’s part” respectively); and
6.6.2. upon the withdrawal or disposal of any part of the Goods by You, such withdrawal or disposal shall be treated as withdrawn or disposed of out of the Customer’s part and not from out of the Supplier’s part until the whole of the Customer’s part shall in accordance with this provision have been withdrawn or disposed of.
7. SUPPLY OF SERVICES
7.1. We shall supply the Services to You in accordance with the Service Specification in all material respects.
7.2. We shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3. We reserve the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and We shall notify You in any such event.
7.4. We warrant to You that the Services will be provided using reasonable care and skill.
8. YOUR OBLIGATIONS
8.1. You shall:
8.1.1. ensure that the terms of the Order and any information You provide in the Service Specification and the Goods Specification are complete and accurate;
8.1.2. co-operate with Us in all matters relating to the Services;
8.1.3. provide Us and Our employees, agents, consultants and subcontractors, with access to Your premises, office accommodation and other facilities as reasonably required by Us to provide the Services;
8.1.4. provide Us with such information and materials as We may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.5. prepare Your premises for the supply of the Goods and the Services and ensure that it is safe for our personnel;
8.1.6. obtain and maintain all necessary licences, permissions and consents which may be required for the Goods and the Services before the date on which the Goods are delivered and/or the Services are to start;
8.1.7. comply with all applicable laws, including health and safety laws;
8.1.8. keep all materials, equipment, documents and other property of Ours (Supplier Materials) at the Your premises in safe custody at Your own risk, maintain the Supplier Materials in good condition until returned to Us, and not dispose of or use the Supplier Materials other than in accordance with Our written instructions or authorisation; and
8.1.9. comply with any additional obligations as set out in the Service Specification and the Goods Specification;
8.1.10. ensure that the storage into which the delivery of any Goods is to be made is safe and will accommodate the full quantity ordered;
8.1.11. ensure that any driver making delivery of the Goods couples up with the correct feed on Your tanks;
8.1.12. provide any special delivery instructions or clearly and concisely notify Us of any hazards at the time an Order is placed;
8.1.13. if to effect delivery, any vehicle delivering the Goods is required to leave the public highway, the surface of any drive, access road or similar (including any manlids or ducts) must be capable of accepting heavy goods vehicles;
8.1.14. any storage tanks at Your premises must be sound and operational.;
8.1.15. any storage tanks at Your premises must have working tank contents gauge visible to the delivery driver;
8.1.16. if more than one storage tank is located at Your premises, the product or goods contained in each tank should be indelibly marked or labelled at the outlet;
8.1.17. reasonable and safe access must be provided to any storage tanks and the premises where the delivery is taking place;
8.1.18. ensure that the Goods are not supplied to any Restricted Party;
8.1.19. not repackage, blend, adulterate or reformulate any of the Goods and shall only resell Goods in their original unopened packaging and/or containers.
8.2. If Our performance of any of Our obligations under the Contract is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation (Customer Default):
8.2.1. without limiting or affecting any other right or remedy available to Us, We shall have the right to suspend the performance of the Services until You remedy the Customer Default, and to rely on the Customer Default to relieve Us from the performance of any of Our obligations in each case to the extent the Customer Default prevents or delays Our performance of any of Our obligations;
8.2.2. We shall not be liable for any costs or losses sustained or incurred by You arising directly or indirectly from Your failure or delay to perform any of Your obligations as set out in this clause 8.2; and
8.2.3. You shall reimburse Us on written demand for any costs (including any direct, indirect or consequential losses, loss of profit or reputation, property damage, loss of opportunity to deploy resources elsewhere, and legal costs) or losses sustained or incurred by Us arising directly or indirectly from the Customer Default.
8.3. You shall be liable to pay to Us (on written demand) for, and indemnify Us against, all reasonable costs and expenses and/or losses sustained or incurred by Us (including any direct, indirect or consequential losses, loss of profit or reputation, damage to property, loss of opportunity to deploy resources elsewhere, and legal costs) which arise in connection with Your fraud, negligence or a material breach of the Conditions or Contract.
8.4. If You become aware that the wrong or defective Goods have been delivered then You must stop using those Goods with immediate effect and notify Us as soon as practicable regarding the same.
8.5. You undertake to draw to the attention of his servants, agents or other persons handling or using the Goods or having access to the Goods whilst in his possession or to whom he sells the Goods or any part thereof any warnings, information or suggestions concerning the methods whereby or the conditions whereunder the Goods should be used, handled or stored which are contained or referred to in Our product information sheet or other literature relating to the Goods or upon any label attached to the Goods or to packaging wherein the Goods are contained. You further undertake to ensure compliance by such persons as aforesaid with such warnings, information or suggestions.
8.6. You shall indemnify Us against any loss or liability whatsoever, whensoever suffered or incurred by Us, by reason of any breach of Your obligations under clause 8.5 or by reason of any failure by You to comply with the said warnings, information or suggestions.
8.7. We shall honour legally valid declarations evidencing an exemption from taxes, duties and/or levies if promptly submitted by You. Any deliveries exempt from excise duties, levies and/or taxes made at Your request, where We prepared the customs or excise duty documents based on Your information, shall be the sole responsibility and liability of You. Likewise, You shall fully indemnify and hold Us and Our affiliates, officers, employees, agents and contractors harmless against all claims, demands, allegations expenses, liabilities, duties, taxes, fines, losses, damages, and costs (collectively, the “Demands”) arising from or related to incorrect or insufficient data having been provided for the clearance of documents or other irregularities in the field of customs, taxes, duties or VAT legislation, regardless of whether any mistake or fact is attributable to a specific party. If any product is authorized for resale by You, You shall ensure that new customs and/or excise duty documents are updated as necessary. You shall, if so requested, inform Us of the date of clearance, the customs office where clearance was obtained, and any substitution of customs or excise duty documents.
8.8. Unless agreed otherwise or required by law, and except where packaging is provided on loan to You, the costs of the usual and customary packaging of the product shall be included in Your invoice, and You shall acquire ownership of the packaging concurrently with the transfer of title to the product to You. Packaging provided by Us shall exclusively be used as packaging material for the product supplied by Us. If You inappropriately use the packaging for alternative means, allow it to be used for any other purpose, or dispose of the packaging, You shall fully indemnify and hold Us harmless against all Demands arising from or related to in respect thereof. You shall comply with all applicable authoritative laws, ordinances, regulations and rules governing the re-use or disposal of packaging or product and shall ensure Our proprietary notices are removed prior to such disposal or re-use. We shall not be obligated to take back, receive or process any delivered packaging materials unless the law so requires or as agreed in writing by Us.
9. CHARGES AND PAYMENT
9.1. The price for Goods:
9.1.1. shall be the price set out in the Order or, if no price is quoted, the price set out in Our published price list as at the date of the order; and
9.1.2. shall be inclusive of all costs and charges of packaging, insurance and transport of the Goods, unless specified otherwise by Us. For the avoidance of doubt, the price for the Goods shall be exclusive of transport costs where the Goods are delivered outside the UK. In such circumstances, such transport costs (which shall be invoiced to and any additional costs incurred relating to customs requirements or clearances and or duties arising will be invoiced to You in addition to the price.
9.2. The charges for Services shall either be a fixed fee or calculated on a time and materials basis, as set out in the Order. Where the Services are calculated on a time and material basis:
9.2.1. the charges shall be calculated in accordance with the Our daily fee rates, as amended from time to time;
9.2.2. Our daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
9.2.3. We shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom We engage on the Services outside the hours referred to in clause 9.2.2; and
9.2.4. We shall be entitled to charge You for any expenses reasonably incurred by the individuals whom We engage 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 Us for the performance of the Services, and for the cost of any materials.
9.3. We reserve the right to:
9.3.1. increase the price of the Goods, by giving notice to You at any time before delivery, to reflect any increase in the cost of the Goods to Us that is due to:
18.104.22.168. any factor beyond the control of Us (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
22.214.171.124. any request by You to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification;
126.96.36.199. increase the price of the Goods on an annual basis with effect from each anniversary of the Contract in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period. The first such increase shall take effect at the beginning of the second Contract Year and shall be [based on] the latest available figure for the percentage increase in the Consumer Prices Index at the beginning of the last month of the previous Contract Year; or
188.8.131.52. any delay caused by any instructions provided by You in respect of the Goods or failure of You to give Us adequate or accurate information or instructions in respect of the Goods.
9.4. In respect of Goods and the Services, We shall invoice You either before, on or at any time after completion of delivery of the Goods or before, on or at any time after completion of the Services. Payment will have been deemed to have been received only on receipt of cash or cleared funds from You. All sums properly due and payable to us under an Order shall become due immediately upon its termination.
9.5. You shall pay each invoice submitted by Us:
9.5.1. within 30 days of the date of the invoice or in accordance with any credit terms agreed by Us and confirmed in writing to You; and
9.5.2. in full and in cleared funds to a bank account nominated in writing by Us, and time for payment shall be of the essence of the Contract.
9.6. If any payments are made by You by credit card, We shall be entitled to charge 2% plus VAT on any such payments.
9.7. If any payments are required to be returned to Us, We shall be entitled to require You to reimburse Us for any charges that We incur in this regard.
9.8. All amounts payable by You 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 Us to You, You shall, on receipt of a valid VAT invoice from Us, pay to Us such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.9. If You fail to make a payment due to Us under the Contract by the due date, then, without limiting Our remedies under clause 13 (Termination), You 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 9.9 will accrue each day and the rate of interest shall be determined in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
9.10. 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).
9.11. You shall notify Us in detailed writing, within fourteen (14) days of the applicable invoice date of any good faith claim, dispute or complaint(s) made by You relating to the payment of such invoice; the absence of which all such claims, disputes or complaints shall be waived. We shall have the right to demand full or partial payment in advance or postpone subsequent deliveries for as long as any previous delivery remains unpaid, or if You fail to provide adequate security (in Our reasonable opinion).
10. INTELLECTUAL PROPERTY RIGHTS
10.1. All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by You) shall be owned by Us.
10.2. You grant Us a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by You to Us for the term of the Contract to provide the Services to You.
11.1. We both undertake that we 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 11.2.
11.2. Each party may disclose the other party’s confidential information:
11.2.1. to their 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 their employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and
11.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3. Neither party shall use the other party’s confidential information for any purpose other than to perform their obligations under the Contract.
12. LIMITATION OF LIABILITY: YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1. Nothing in these Conditions shall limit or exclude Our liability for:
12.1.1. death or personal injury caused by Our negligence, or the negligence of Our employees, agents or subcontractors;
12.1.2. fraud or fraudulent misrepresentation;
12.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
12.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
12.1.5. defective products under the Consumer Protection Act 1987.
12.2. Subject to clause 12.1, We shall not be liable to You, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
12.2.1. loss of profits;
12.2.2. loss of sales or business;
12.2.3. loss of agreements or contracts;
12.2.4. loss of anticipated savings;
12.2.5. loss of use or corruption of software, data or information;
12.2.6. loss of or damage to goodwill; and
12.2.7. any indirect or consequential loss.
12.3. Subject to clause 12.1, the Our total liability to You, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to 100% of the total charges paid by You under the Contract.
12.4. 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.
12.5. This clause 12 shall survive termination of the Contract.
13.1. Without affecting any other right or remedy available to both of us, either of us may terminate the Contract with immediate effect by giving written notice to the other party if:
13.1.1. the other party commits a material breach of their obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
13.1.2. the other party takes any step or action in connection with their 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 their 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;
13.1.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of their business; or
13.1.4. 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 their obligations under the Contract has been placed in jeopardy.
13.2. Without affecting any other right or remedy available to Us, We may terminate the Contract with immediate effect by giving written notice to You if You fail to pay any amount due under the Contract on the due date for payment or if We obtain a credit reference against You which does not meet Our minimum requirements.
13.3. Without affecting any other right or remedy available to Us, We may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between ourselves if You fail to pay any amount due under the Contract on the due date for payment, You become subject to any of the events listed in clause 13.1.2 to clause 13.2.4, or We reasonably believe that You is about to become subject to any of them.
14. CONSEQUENCES OF TERMINATION
14.1. On termination of the Contract You shall immediately pay to Us all of Our outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, We shall submit an invoice, which shall be payable You immediately on receipt.
14.2. 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.
14.3. 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.
15. FORCE MAJEURE
15.1. Force Majeure Event means any circumstance, not within a party’s reasonable control including, without limitation:
15.1.1. acts of God, flood, drought, earthquake or other natural disasters;
15.1.2. epidemic or pandemic;
15.1.3. terrorist attack, civil war, civil commotion or riots, war, the threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
15.1.4. nuclear, chemical or biological contamination or sonic boom; and
15.1.5. the collapse of buildings, fire, explosion or accident.
15.2. If We are prevented, hindered or delayed in or from performing any of Our obligations under this Contract by a Force Majeure Event (Affected Party), We shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for the performance of such obligations shall be extended accordingly.
15.3. We shall:
15.3.1. as soon as reasonably practicable after the start of the Force Majeure Event, notify You in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of Our obligations under the agreement; and
15.3.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of Our obligations.
15.4. If the Force Majeure Event prevents, hinders or delays the performance of Our obligations for a continuous period of more than 30 days, we shall both within a further 15 days meet in order to negotiate in good faith any necessary amendments to this Contract as may be necessary to mitigate against such Force Majeure Event. If we cannot agree to such necessary amendments within this time period, You may terminate this Contract immediately by giving written notice to Us.
15.5. We shall use Our reasonable endeavours to source supply from alternative sources save that nothing in this clause shall require Us to incur losses as a result of sourcing such supply.
16.1. Assignment and other dealings
16.1.1. We may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of Our rights and obligations under the Contract.
16.1.2. You shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of Your rights and obligations under the Contract without the prior written consent of Us.
16.2.1. 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 their registered office (if a company) or their principal place of business (in any other case); or sent by email to an address specified by the other party.
16.2.2. Any notice or other 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; 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; Or, if sent by fax or email, at 9.00 am on the next Business Day after transmission.
16.2.3. This clause 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.
16.3. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.4. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
16.5. No partnership or agency. Nothing in the Contract is intended to or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6. Entire agreement.
16.6.1. 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.
16.6.2. Each party acknowledges that in entering into the Contract they do 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 they shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
16.6.3. Nothing in this clause shall limit or exclude any liability for fraud.
16.8. Third parties rights. 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.
16.9. Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
16.10. Jurisdiction. Each party irrevocably agrees that the courts of England 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.