The customer's attention is drawn in particular to the provisions of clause 13.
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 15.6.
Contract: the contract between the Supplier and the Customer for the Design and/or manufacture of Goods to the Specification in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Design: a design of goods, tooling or some product or article produced or to be produced by the Supplier to the Specification or otherwise reasonably required to complete the Order.
Force Majeure Event: has the meaning given in clause 14.
Goods: the goods as defined in clause 5.
Normal Life of the Tool: Eighty percent of the median life of such a tool used in the manner and under the conditions that it was used.
Order: the Customer's order as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Quotation, or overleaf, as the case may be for the Design and/or for the manufacture or supply of Goods (to be compliant with the Specification).
Quotation: the Supplier’s quotation to the Customer for the Design or for the supply of Goods or in respect to both of them.
Specification: the specification of work to be done by the Supplier as defined in clause 3.
Supplier: HEAVEN DOWSETT & CO. LIMITED (registered in England and Wales with company number 00485691) who’s registered office is at Insulation House, 197 Shady Lane, Great Barr, Birmingham, B44 9ES.
Tooling: tooling, dies, drills, moulds, presses, vessels, tools and machinery, and related items.
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 personal representatives, successors or permitted assigns.
(c) a reference to a statute or statutory provision is a reference to such statute or 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.
(e) a reference to the singular includes the plural and vice versa.
(f) a reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 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.
2.2 The Order constitutes an offer by the Customer to purchase the Design or the Goods or both of them in accordance with these Conditions. Notwithstanding anything to the contrary in clause 3.2, the Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 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.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A Quotation shall not constitute an offer. A Quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1 The ‘Specification’ means: any specification for the Design or for the Goods, including any related plans and drawings, as set out in the Order as amended pursuant to this clause 3 but always subject to the normal tolerances applied to such goods or design specification.
3.2 Where in the reasonable opinion of the Supplier, the Specification is in error or incomplete or does not conform with any applicable statutory or regulatory requirements or relevant code of practice, the Supplier may (at its sole discretion but is not obliged to) make such reasonable amendment to the Specification as it deems fit and such amendment shall be deemed to be incorporated in the Specification.
3.3 Nothing in this clause 3 shall impose any duty on the Supplier to consider or examine the Specification for errors, omissions or for any non-compliance with any applicable law or regulation or code of practice.
3.4 Where the Supplier has been in consultation with the Customer about a change to the Specification, any such amendment may be agreed in writing or orally and shall be deemed to be incorporated into the Specification. If later, there is a dispute as to what modifications have been agreed, any ambiguity shall be resolved in favour of the Supplier.
3.5 The Customer shall ensure that any information it provides in respect of the Specification is complete and accurate and clearly sets out the scope of the work to be undertaken by the Supplier and clearly delineates whether the contract is for Design, Design and supply of Goods or is for Goods only.
3.6 To the extent that the Design or the Goods or both of them are produced in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable 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 Specification or any other materials or information supplied by the Customer. This clause 3.6 shall survive termination of the Contract.
4.1 Where the Order includes explicitly or by implication that the Supplier design some element of the Goods or where the Order is for Design only the Supplier shall produce a design in accordance with the Specification and provided that the Design is in accordance with the Specification it shall be deemed to be satisfactory.
4.2 The Customer shall co-operate with the Supplier in all matters relating to the Design including but not limited to the provision of such information or materials as the Supplier may reasonably require and also responding to any technical enquiries and clarifications requested by the Supplier to assist it in the process of preparing the Design. All such responses of the Customer shall be accurate in all material respects.
4.3 The Design and all intellectual property generated in the course of preparing it by the Supplier shall remain with and be vested with the Supplier until such time as the later of:
(a) the Customer has paid the Supplier for the Design in full;
(b) the Customer has paid for the Goods ordered (where the order included the Design and Goods).
4.4 The Customer shall not provide the Design to a third party or use it itself until such time as the rights and title to the Design have passed to it pursuant to clause 4.3.
4.5 Without prejudice to clause 3.2 the Supplier may (at its sole discretion but is not obliged to) make any changes to the Design or the delivery of the Design or any aspect of the it necessary for it conform with any applicable statutory or regulatory requirements, or which do not materially affect the utility of the Design.
5.1 The Goods means such goods (or any part or any number of them) that are described in the Specification (subject to the usual tolerances applied to such goods) and provided that the Goods conform to the Specification they shall be deemed to be satisfactory.
6.1 Where an Order is for Tooling to be delivered to the Customer, the Tooling shall be considered Goods and all of these Conditions pertaining to Goods shall apply.
6.2 Where an Order is for Goods and the Supplier is to manufacture the Tooling to fulfil the Order the following shall apply to the Tooling element of the Order as appropriate:
(a) Where the Contract does not provide specific consideration to be paid by the Customer to the Supplier in respect of Tooling, the Tooling shall be and remain the property of the Supplier;
(b) where the Customer supplies Tooling or where the Contract provides specific consideration for the manufacture of the Tooling and it intended that the Tooling shall be the property of the Customer then:
(i) the Tooling shall be the property of the Customer;
(ii) the Supplier may charge the Customer a storage fee as the Supplier may reasonably require from time to time;
(iii) the Supplier shall have a lien on the tooling until such time as all and any monies due in respect of the tooling have been discharged in full and whether such monies be a charge for its origination or for storage and whether or not such monies are an accrual or have been invoiced;
(iv) the Supplier shall maintain insurance for the full historical cost less a reasonable adjustment for amortisation of the value over the tooling over its useful life;
(v) the liability of the Supplier to the Customer for loss or damage to Tooling shall not exceed the insured value;
(vi) subject to the Supplier having fulfilled all current orders from the Customer that require use of the Tooling and reasonable notice and discharge or the Suppliers lien, the Customer may at its expense, collect the Tooling during the normal business hours of the Customer;
(vii) in respect of the Tooling, at end of the Normal Life of the Tool the Supplier shall have no liability to the Customer whatsoever howsoever arising and the Supplier may require the Customer to collect said Tooling (or any part of it) on reasonable notice or dispose of it without notice or compensation;
(c) where the Order provides for the Customer to provide a contribution towards the origination of Tooling, save as agreed in writing otherwise, the Tooling shall be the exclusive property of the Supplier.
6.3 Where the Supplier is to manufacture the Tooling to fulfil the Order Delivery of the Tooling (or any part of it) shall be deemed to have taken place when the Tooling is signed off or otherwise considered as complete by such person as the Supplier delegates responsibility to supervise the manufacture of tooling.
7. DELIVERY OF DESIGNS
7.1 Where the Contract or any part of it is for Design, delivery of the Design will be deemed to have taken place:
(a) where the Contract is Design only, when the Design (compliant with the Specification) is dispatched (in a human readable or such machine readable form as the Supplier may agree with the Customer) from the Supplier (whether by post, fax, email or such other delivery service as the Supplier may reasonably use) to the Customer or its agent;
(b) where the Contract is Design and for the supply of Goods, when the Design (compliant with the Specification) is delivered in such form as the Supplier may determine to its tool making or manufacturing facility or subcontractor.
8. DELIVERY OF GOODS
8.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by an advice note (delivery note) which shows:
(i) the Customer’s order number or other order reference;
(ii) the Supplier’s description of the Goods;
(iii) the quantity of the Goods (including the code number of the Goods, where applicable);
(iv) the advice note number; and
(b) pallets and other packaging that it wishes to be returned are invoiced by the Supplier at its standard rates pertaining to the time of delivery. Such charges will be credited to the extent that the Customer has returned to the Supplier within 30 days of receipt by the Customer the said pallets and other packaging materials in good reusable condition.
8.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
8.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
8.4 Any dates quoted for delivery 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.
8.5 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 up to a maximum of the price paid for the Goods by the Customer to the Supplier. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or 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.
8.6 If the Customer fails to take delivery of the Goods within two 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 the Supplier's failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9:00 am on the third Business Day after 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).
8.7 If 20 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken 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.
8.8 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.
8.9 Without prejudice to the Supplier’s right to deliver Goods by instalments, the Customer shall not be entitled to reject the Goods if on the final delivery of the Goods pertaining to a particular Order, in aggregate the Supplier delivers up to and including 5.0% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the final invoice pertaining to the particular Order on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
8.10 Any claim by the Customer for a credit in respect to a short supply or for Goods damaged in transit must be made within seven days of delivery of the Goods, the Customer shall give written details of the shortage and/or damage including the apparent cause of the claim, the date and time of delivery, and the delivery advice note number. The Goods and packing shall be preserved for a period of 21 days from notification of such claim and the Customer shall provide the Supplier with access to inspect the Goods.
8.11 Any claim by the Customer for a credit in respect of non-delivery of Goods, shall be notified by the Customer to the Supplier within 14 days of receipt of the Supplier’s invoice.
8.12 In respect of any valid claim made under clauses 8.10 and 8.11, the Supplier may repair damaged Goods or replace the damaged or missing Goods in a reasonable time (including a reasonable time to investigate the claim) and the Supplier shall be deemed not to be in any breach of contract.
9.1 In respect of any Design, the Supplier warrants to the Customer that, for a period of one month after delivery, the Design has been provided using reasonable care and skill.
9.2 In respect of Goods, the Supplier warrants for the warranty period as defined in clause 9.3 (warranty period), that the Goods shall:
(a) conform in all material respects with the Specification;
(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 1979); and
(d) be fit for any purpose held out by the Supplier.
9.3 Where the Goods are any form of tooling of any kind, the warranty period shall end the earlier of:
(a) when the tool has produced such number of parts that would be considered 80% of the median life of such a tool used in the manner and under the conditions that it was used; or
(b) one month,
and in any other case the warranty period shall be one month.
9.4 Subject to clause 9.5, if:
(a) the Customer gives notice in writing to the Supplier 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 9.2;
(b) the Supplier is given a reasonable opportunity of examining such 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, repair or replace the defective Goods, or refund the price of the defective Goods in full, or where the Goods are tooling, refund such proportion of the price that if the price of the Goods was amortised over the warranty period, such sum that in the reasonable opinion of the Supplier would not have at the time the Goods proved defective so as to put them out of use, been fairly amortised.
9.5 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 9.2 in any of the following events:
(a) any further use of such Goods is made after the giving of the notice in accordance with clause 9.4;
(b) the defect arises because the Customer or any user or any fitter failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer or any other information provided by the Customer;
(d) the Customer or any user or any fitter alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(f) the Customer has not paid for the Goods by the due date of the invoice for the Goods;
(g) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(h) use of goods differs from that specified in or implied by the Specification.
9.6 Except as provided in this clause 9, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 9.2.
9.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.8 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier save that the warranty period for any repaired or replacement Goods shall be the period applicable to the Goods as originally supplied before any repair or replacement.
10. TITLE AND RISK
10.1 The risk in the Goods shall pass to the Customer on completion of delivery.
10.2 Title to the Goods shall not pass to the Customer until 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 respect of which payment has become due, in which case title to the Goods shall pass at the time of payment.
10.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods in accordance with any instructions provided by the Supplier or in the absence of such instructions best practice in the Customer’s industry and separately from all other goods held by the Customer and to mark them (if not already adequately marked) as the property of the Supplier 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;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) ensure that the Supplier’s interest is noted as the loss payee on any policy of insurance that is in place in respect of the Goods;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
10.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.2, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer's right to resell the 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 product; and
(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.
10.5 Without prejudice to the Supplier’s rights and the Customers duties and limitation on its rights as set out in clause 10.4, at any time after payment for any Goods has become due but has not been paid, the Supplier may enter the premises of the Customer, or any premises under the control of the Customer and remove the Goods and any of them. The Customer shall use its best endeavours to ensure the Supplier has good access to the Goods and is given any assistance that the Supplier requires to take possession of the Goods.
10.6 If the Customer has sold the Goods (or any part of them) the Customer shall ensure the purchaser is aware that the Goods remain the property of the Supplier and that the purchaser of the Goods complies with the requirements of clauses 10.3 as if it were the Customer.
11. PRICE AND PAYMENT
11.1 Save as otherwise provided, the price of the Goods shall be:
(a) the price set out in the Quotation; or
(b) if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery (if any); or
(c) if no price was quoted and no price list exists for the Goods, the higher of the price of the Goods when last provided to the Customer or such price that the Supplier may reasonably determine.
11.2 The Supplier may at any time before invoicing, increase the price of Design or Goods to reflect any increase in the cost of at the date of delivery that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
11.3 The price of Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
11.4 The price of Design or Goods is exclusive of amounts in respect of value added tax (VAT). 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 Design or the Goods as the case may be.
11.5 The Supplier may invoice the Customer for Design or Goods on or at any time after the completion of delivery (or part delivery).
11.6 The Customer shall pay Supplier’s invoices in full and in cleared funds on the following terms:
(a) on such specific terms as the Supplier has agreed in writing; or
(b) in respect of Orders for Design or Goods or both invoices for deliveries shall be due 28 days after the date of delivery;
(c) Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
11.7 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 4.0% per annum above Lloyds Bank PLC’s base rate 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.
11.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer
11.9 Without prejudice to clause 11.8, the Customer shall not delay or refuse payment for any Design or Goods for any alleged defect, the Customer’s only remedy is to claim separately under the Warranty provisions herein if within the Warranty Period of the Design or Goods or separately at law.
11.10 Without prejudice to any other remedy in contract or otherwise, if any of the Supplier’s invoices to the Customer (for the removal of doubt, in respect of any contract whatsoever) have not been paid by their due date and in the Supplier’s reasonable opinion, that there has been no breach of contract by the Supplier pertaining to the unpaid invoice(s):
(a) the Supplier may suspend all deliveries of Designs and/or Goods to the Customer;
(b) the Supplier shall have no obligation to restore supplies to the Customer until a reasonable time after the unpaid invoices have been paid or any dispute between the Customer and the Supplier has been settled and allowing for such time the Supplier reasonably considers required to allow for any necessary rescheduling of its work bearing in mind its obligations to other customers.
(c) such suspension of supply shall not constitute a breach of any contract between the Supplier and the Customer; and
(d) the Supplier shall be held harmless by the Customer for any loss whatsoever suffered by the Customer during or arising consequential to the period of suspension of deliveries.
12. TERMINATION AND SUSPENSION
12.1 If the Customer becomes subject to any of the events listed in clause 12.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
12.2 For the purposes of clause 12.1, the relevant events are:
(a) the Customer 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 foregoing apply;
(b) the Customer 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 the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) 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 Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being a company) 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 Customer;
(e) (being a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) a creditor or encumbrancer of the Customer 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;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(a) to clause 12.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Customer'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; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
12.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 12.2(a) to clause 12.2(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
12.4 On termination of the Contract for any reason all of the Supplier’s invoices to the Customer shall become due and payable immediately and the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
12.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
12.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
13. LIMITATION OF LIABILITY
13.1 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 (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
13.2 Subject to clause 13.1:
(a) the Supplier shall under no circumstances whatsoever 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; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the aggregate price paid for the Design and/or for the Goods deliverable by the Supplier under the Contract from which any liability arises.
14. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of a supplier to the Supplier to supply goods or services at the time required by the Supplier, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
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 or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the 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, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
(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 15.2(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 email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(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 part-provision 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 the 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 or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.6 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 in writing and signed by the Supplier.
15.7 Governing law. The Contract, 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 England and Wales.
15.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).