TOUGHRACK & KITLAB
STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS
THE BUYER’s ATTENTION IS DRAWN TO THE FOLLOWING IMPORTANT CLAUSES: 8, 9, 11 and 13.
- 1. Application of Terms and Conditions
- 1.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller; and
- 1.2 These Terms and Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted by the Seller, or any such order is made or purported to be made, by the Buyer.
- 2. Interpretation
- 2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
means any day other than a Saturday, Sunday or bank holiday when banks in London are open for business;
means the person who accepts a quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
means any day of the year;
means the contract for the purchase and sale of the Goods which shall incorporate, and be subject to, these Terms and Conditions;
means the price stated in the Contract payable for the Goods;
means the date on which the Goods are to be delivered as stipulated in the Buyer’s order and accepted by the Seller, as evidenced in the Contract;
means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with the Contract;
means any Toughrack cabinet that is soundproofed and described as such on the Website but which shall exclude any electrical items attached to the cabinet including, but not limited to, any power supply units or any cooling fans.
means a calendar month;
means IT Lab Limited (t/a Toughrack and Kitlab), a company registered in England under 03645998 of Big Studios, 1 East Poultry Avenue, London EC1A 9PT and includes all employees and agents of IT Lab Limited.
means any cabinet that is part of the Toughrack branded line but which shall exclude any electrical items attached to the cabinet including, but not limited to, any power supply units or any cooling fans.
value added tax chargeable under English law for the time being and any similar additional tax.
- 2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
- a) “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
- b) a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
- c) “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
- d) a Schedule is a schedule to these Terms and Conditions; and
- e) a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
- f) a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
- 2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
- 2.4 Words imparting the singular number shall include the plural and vice versa.
- 2.5 References to any gender shall include the other gender.
- 3. Basis of Sale
- 3.1 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
- 3.2 No variation to these Terms and Conditions, or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
- 3.3 Sales literature, price lists, website listings and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the goods or has accepted an order placed by the Buyer by whichever is the earlier of:
- a) the Seller’s written acceptance;
- b) delivery of the Goods; or
- c) the Seller's invoice.
- 3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, website, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
- 4. Orders and Specifications
- 4.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.
- 4.2 The specification for the Goods shall be that set out in the Seller’s sales documentation unless varied expressly in the Buyer’s order (if such variation(s) is/are accepted by the Seller). The Goods will only be supplied in the minimum units thereof stated in the Seller’s price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly.
- 4.3 Illustrations, photographs or descriptions whether in catalogues, brochures, price lists, websites (including the Website) or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
- 4.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
- 4.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
- 4.6 The Buyer will not have any right to cancel an order for the supply of Toughrack Cabinets or Hushrack Cabinets due to the bespoke nature of their construction.
- 5. Price
- 5.1 The Contract Price of the Goods shall be the price listed in the Seller’s Quotation current at the date of acceptance of the Buyer’s order or such other price as may be agreed in writing by the Seller and the Buyer.
- 5.2 A Seller Quotation shall be valid for 7 days only or such lesser time as the Seller may specify and shall be subject to availability.
- 5.3 The Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
- 5.4 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are exclusive of the Seller’s charges for packaging and transport.
- 5.5 The Contract Price is exclusive of any applicable VAT, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.
- 6. Payment
- 6.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Contract Price of the Goods when the Buyer’s Order has been accepted by the Seller or at any time thereafter.
- 6.2 The Buyer shall pay the Contract Price of the Goods (less any discount or credit allowed by the Seller, but without any other deduction, credit or set off) on the date of the Seller’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Buyer and the
- Seller in respect of the Contract. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time for the payment of the Contract Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
- 6.3 All payments shall be made to the Seller as indicated on the form of acceptance or invoice issued by the Seller.
- 6.4 The Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding sub-Clause 6.2 of these Terms and Conditions, all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
- 7. Delivery
- 7.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the place in the United Kingdom specified in the Buyer’s order and/or the Seller’s acceptance and/or the Contract as the location to which the Goods are to be delivered by the Seller or, if no place of delivery is so specified, by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection.
- 7.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer. The following shall be guidelines only for Delivery Dates:
- a) Any order confirmed by the Seller before 12 pm on a Business Day will be processed that day and will be delivered as per the requested delivery option provided no additional security checks are required and all Equipment is available for delivery.
- b) Where the Goods are being manufactured to order (which shall include all Toughrack Cabinets and Hushrack Cabinets), the Seller will use its reasonable endeavours to deliver the Goods within ten business days of the confirmation of order.
- 7.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
- 7.4 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 9.1 risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.
- 8. Inspection/Shortage
- 8.1 The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be.
- 8.2 Where the Goods cannot be examined the carrier’s note or such other note as appropriate shall be marked “not examined”.
- 8.3 The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the provisions of this Clause 8 are not complied with and, in any event, will be under no liability if a written complaint is not delivered to the Seller within five Business Days of delivery detailing the alleged damage or shortage.
- 8.4 In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer.
- 8.5 Subject to sub-Clauses 8.3 and 8.4, the Seller shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
- 9. Risk and Retention of Title
- 9.1 Risk of damage to or loss of the Goods shall pass to the Buyer at:
- a) in the case of Goods to be delivered at the Seller’s premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or
- b) in the case of Goods to be delivered otherwise than at the Seller's premises, the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
- 9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Contract Price of the Goods.
- 9.3 Sub-Clause 9.2 notwithstanding, legal and beneficial title of the Goods shall not pass to the Buyer until:
- a) the Seller has received in cash or cleared funds payment in full of the Contract Price of the Goods and any other goods supplied by the Seller; and
- b) the Buyer has repaid all moneys owed to the Seller, regardless of how such indebtedness arose.
- 9.4 Until payment has been made to the Seller in accordance with these Terms and Conditions and the Contract and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
- 9.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
- 9.6 The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. In the event of repossession the Buyer shall deliver up to the Seller all Goods in which title has not passed, the cost of which shall be born by the Buyer.
- 9.7 The Buyer’s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if:
- a) the Buyer commits or permits any material breach of his obligations under these Terms and Conditions;
- b) the Buyer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
- c) the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
- d) the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
- 10. Assignment
- 10.1 The Seller may assign the Contract or any part of it to any person, firm or company without the prior written consent of the Buyer.
- 10.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
- 11. Defective Goods
- 11.1 If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Buyer gives written notice of such defect to the Seller within five Business Days of such delivery, the Seller shall at its option:
- a) replace the defective Goods within a reasonable period following the receipt of the Buyer’s notice; or
- b) refund to the Buyer the price for those Goods (or parts thereof, as appropriate) which are defective;
but the Seller shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice given by the Buyer as set out above.
- 11.2 No Goods may be returned to the Seller without the prior agreement in writing of the Seller. Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Seller’s sole discretion the Seller shall refund or credit to the Buyer the price of such defective Goods but the Seller shall have no further liability to the Buyer.
- 11.3 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Seller’s instructions (whether given orally or in writing), misuse or alteration of the Goods without the Seller’s prior approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
- 11.4 Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
- 11.5 Except in respect of death or personal injury caused by the Seller’s negligence, or as expressly provided in these Terms and Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs,
- expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
- 11.6 The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer’s failure to comply with this condition.
- 12. Buyer's Default
- 12.1 If the Buyer fails to make any payment on the due date, the whole of the balance of the price of the Goods then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
- a) terminate the Contract or suspend any further deliveries of Goods (whether ordered under the same contract or not) to the Buyer;
- b) cancel the order or suspend any further deliveries to the Buyer;
- c) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
- d) charge interest on the amount outstanding from the due date to the date of receipt by the Seller (whether or not after judgment), at the annual rate of 4 % above the base lending rate from time to time of Natwest Bank PLC, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
- e) suspend all further manufacture, delivery, installation or warranty service until payment has been made in full;
- f) make a storage charge for any undelivered Goods at its current rates from time to time;
- g) stop any Goods in transit; and
- h) a general lien on all Goods and property belonging to the Buyer, exercisable in respect of all sums lawfully due from the Buyer to the Seller. The Seller shall be entitled, on the expiry of 14 days' notice in writing, to dispose of such Goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
- 12.2 This condition applies if:
- a) the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
- b) the Buyer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
- c) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
- d) the Buyer ceases, or threatens to cease, to carry on business; or
- e) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
- 12.3 The Seller may, without prejudice to any other rights it may have, set off any liability of the Buyer to the Seller against any liability of the Seller to the Buyer.
- 13. Limitation of Liability – THE BUYER’S ATTENTION IS DRAWN TO THIS CLAUSE
- 13.1 SUBJECT TO THE PROVISIONS OF CLAUSES 7 AND 11 THE FOLLOWING PROVISIONS SET OUT THE ENTIRE FINANCIAL LIABILITY OF THE SELLER (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS AND SUB-CONTRACTORS) TO THE BUYER IN RESPECT OF:
- a) ANY BREACH OF THESE TERMS AND CONDITIONS OR THE CONTRACT;
- b) ANY USE MADE (INCLUDING BUT NOT LIMITED TO MODIFICATIONS) OR RESALE BY THE BUYER OF ANY OF THE GOODS, OR OF ANY PRODUCT INCORPORATING ANY OF THE GOODS; AND
- c) ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION INCLUDING NEGLIGENCE ARISING UNDER OR IN CONNECTION WITH THE CONTRACT.
- 13.2 ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW (SAVE FOR THE CONDITIONS IMPLIED BY SECTION 12 OF THE SALE OF GOODS ACT 1979) ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE CONTRACT.
- 13.3 NOTHING IN THESE TERMS AND CONDITIONS EXCLUDES OR LIMITS THE LIABILITY OF THE SELLER:
- a) FOR DEATH OR PERSONAL INJURY CAUSED BY THE SELLER’S NEGLIGENCE;
- b) FOR ANY MATTER WHICH IT WOULD BE ILLEGAL FOR THE SELLER TO EXCLUDE OR ATTEMPT TO EXCLUDE ITS LIABILITY; OR
- c) FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
- 13.4 SUBJECT TO SUB-CLAUSES 13.2 AND 13.3:
- a) THE SELLER’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THE CONTRACT SHALL BE LIMITED TO THE CONTRACT PRICE; AND
- b) THE SELLER SHALL NOT BE LIABLE TO THE BUYER FOR ANY PURE ECONOMIC LOSS, LOSS OF PROFIT, LOSS OF BUSINESS, DEPLETION OF GOODWILL OR OTHERWISE, IN EACH CASE WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, OR ANY CLAIMS FOR CONSEQUENTIAL COMPENSATION WHATSOEVER (HOWSOEVER CAUSED) WHICH ARISE OUT OF OR IN CONNECTION WITH THE CONTRACT.
- 14. Guarantees
- 14.1 The Seller warrants to the Buyer that the Goods (not including Toughrack Cabinets or Hushrack Cabinets, which are dealt with in clause 14.2) are free from defects of workmanship and materials. The Seller undertakes (subject to the remainder of this condition 14), at its option, to repair or replace Goods (other than consumable items) which are found to be defective as a result of faulty materials or workmanship within six months of delivery and installation.
- 14.2 The Seller warrants to the Buyer that all Toughrack Cabinets and Hushrack Cabinets are free from defects of workmanship and materials. The Seller undertakes (subject to the remainder of this condition 14), at its option, to repair or replace any Toughrack Cabinets or Hushrack Cabinets which are found to be defective as a result of faulty materials or workmanship for the Lifetime (as defined in 14.7) of the Toughrack Cabinet or Hushrack Cabinet. For the avoidance of doubt, this shall exclude any electrical items attached to the Toughrack Cabinet or Hushrack Cabinet including, but not limited to, any power supply units or any cooling fans, which shall be deemed to be Goods and warranted under clause 14.1.
- 14.3 The Seller shall not be liable for a breach of the warranty contained in condition 14.1 or 14.2 unless:
- a) the Buyer gives written notice of the defect to the Seller within seven days of the time when the Buyer discovers or ought to have discovered the defect; and
- b) after receiving the notice, the Seller is given a reasonable opportunity of examining such Goods.
- 14.4 The Seller shall not be liable for a breach of the warranty in condition 14.1 or 11.2 if:
- a) the Buyer makes any use of Goods in respect of which it has given written notice under condition 14.3(a); or
- b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
- c) the Buyer alters or repairs the relevant Goods without the written consent of the Seller.
- 14.5 Any repaired or replacement Goods shall be under warranty for the unexpired portion of the six-month period.
- 14.6 Any repaired or replacement Toughrack Cabinet or Hushrack Cabinet shall be under warranty for the Lifetime of the Toughrack Cabinet or Hushrack Cabinet.
- 14.7 The Lifetime of a Toughrack Cabinet or Hushrack Cabinet under clause 14.2 and 14.6 shall expire at the earlier of:
- a) that model of Toughrack Cabinet or Hushrack Cabinet no longer being offered by the Seller; or
- b) the Buyer disposing or selling the Toughrack Cabinet or Hushrack Cabinet to a third party.
The Lifetime warranty is non-transferable.
- 14.8 For the avoidance of doubt, the Seller shall not be liable for any damage or defects to the Goods caused by fair wear and tear of the Goods, any improper use of the Goods or any use of the Goods outside their normal application by the Buyer.
- 15. Confidentiality, Publications and Endorsements
- 15.1 The Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default.
- 15.2 The Buyer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its licensor.
- 15.3 The Buyer will use its reasonable endeavours to ensure compliance with this Clause 15 by its employees, servants and agents.
- 15.4 The provisions of this Clause 15 shall survive the termination of the Contract.
- 16. Communications
- 16.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
- 16.2 Notices shall be deemed to have been duly given:
- a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
- b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
- c) on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
- d) on the tenth business day following mailing, if mailed by airmail, postage prepaid.
- 16.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
- 17. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
- 18. Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
- 19. Severance
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
- 20. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
- 21. Consumer Rights
In the event that the Buyer is a consumer, the provisions of these Terms and Conditions are in addition to and do not affect the Buyer’s statutory rights as a consumer. Details of a consumer’s statutory right of cancellation, and an explanation of how to exercise it, are available from the Citizens Advice Bureau or online at http://www.direct.gov.uk/en/governmentcitizensandrights/consumerrights/index.htm
- 22. Law and Jurisdiction
- 22.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
- 22.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.