Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Commencement Date: has the meaning set out in clause REF "a883113" \h \w \* MERGEFORMAT 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause: REF "a901295" \h \w \* MERGEFORMAT 16.2.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Control: the ability of a person to direct the affairs of another whether by virtue of the ownership of shares, contracts or otherwise.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning set out in clause: REF "a391989" \h \w \* MERGEFORMAT 4.2.
Force Majeure Event: has the meaning given to it in clause: REF _Ref290033014 \r \h \* MERGEFORMAT 15.1.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Supplier's Quotation as the case may be.
Quotation: any written or verbal quotation or response to tender provided to the Customer by the Supplier for the provision or Goods and/or Services.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Quotation and/or Service Specification.
Service Specification: any description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: Holmes Catering Equipment Limited registered in England and Wales with company number 01649809 whose registered office is at The Industrial Estate, Full Sutton, York YO41 1HS.
Supplier Materials: has the meaning set out in clause REF "a1044509" \h \w \* MERGEFORMAT 8.1.7.
In these Conditions, the following rules apply:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- a reference to a party includes its successors or permitted assigns;
- a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- a reference to writing or written includes faxes and (subject to clause REF _Ref290903875 \r \h \* MERGEFORMAT 16.10) e-mails.
Basis of Contract
The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or (if earlier) the Supplier commences delivery of the Goods and/or performance of the Services, at which point and on which date the Contract shall come into existence (Commencement Date). Once accepted by the Supplier, no Order may be cancelled by the Customer without the Supplier's prior written agreement.
The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
Any samples, drawings, descriptive matter or advertising issued by the Supplier 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.
These Conditions are the only basis on which the Supplier is prepared to deal with the Customer and shall apply to the Contract to the entire 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. No terms or conditions endorsed upon, delivered with or contained in the Customer's Order, confirmation of order, or any other document will form part of the Contract by way of reference to any such document.
Any Quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
Goods
The Goods are described in the Quotation and/or the Goods Specification.
The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements, or to make changes which do not materially affect the nature or quality of the Goods, and the Supplier shall notify the Customer in any such event.
Delivery of Goods
The Supplier shall ensure that:
-
each delivery of the Goods is accompanied by a delivery note which shows all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
- if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
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.
Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. The Supplier may deliver the Goods in advance of the quoted dates upon giving reasonable notice to the Customer.
If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
If the Customer fails to accept or take delivery of the Goods within five (5) Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
-
delivery of the Goods shall be deemed to have been completed at 9.00 am on the sixth (6th) Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
If ten (10) Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted or 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.
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.
If the Supplier supplies some but not all of the Goods and/or Services, the Customer shall not be entitled to object to or reject the Goods and/or Services or any part of them by reason of the shortfall and shall pay for such Goods and/or Services at the pro-rata Contract rate.
Quality of Goods
Where the Supplier is not the manufacturer of the Goods, the Supplier shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Supplier.
The Supplier warrants that on delivery, and for a period of twelve (12) months from the date on which the Goods are commissioned (Warranty Period), the Goods shall:
-
conform in all material respects with their description and any applicable Goods Specification;
-
be free from material defects in design, material and workmanship; and
-
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
Subject to clause REF "a377734" \h \w \* MERGEFORMAT 5.4, the Customer may reject any Goods delivered to it that do not comply with clause REF _Ref289964959 \r \h \* MERGEFORMAT 5.2, provided that:
-
notice of rejection is given to the Supplier during the Warranty Period and (a) in the case of a defect that is apparent on normal visual inspection, within five (5) Business Days of delivery; or (b) in the case of a latent defect, within five (5) Business Days of the latent defect having become apparent; and
-
the Supplier is given a reasonable opportunity of examining such Goods; and
-
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.
In such circumstances the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full, and this shall be the sole and exclusive remedy for the Customer in relation to the non-compliance of the Goods with such warranty.
The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause REF _Ref289964959 \r \h \* MERGEFORMAT 5.2 if:
-
the Customer fails to give notice of rejection in accordance with clause REF _Ref290900742 \r \h \* MERGEFORMAT 5.3;
- the Customer makes any further use of such Goods after giving a notice in accordance with clause REF "a672557" \h \w \* MERGEFORMAT 5.3;
-
the defect arises because the Customer failed to follow the Supplier'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;
-
the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
-
the Customer alters or repairs such Goods without the written consent of the Supplier;
-
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
-
the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
Except as provided in this clause REF "a755177" \h \w \* MERGEFORMAT 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause REF _Ref289964959 \r \h \* MERGEFORMAT 5.2.
The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause REF "a672557" \h \w \* MERGEFORMAT 5.3.
Title and Risk
The risk in the Goods shall pass to the Customer on completion of delivery.
Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
the Goods; and
-
any other goods or Services that the Supplier has supplied to the Customer in respect of which payment has become due.
Until title to the Goods has passed to the Customer, the Customer shall:
-
hold the Goods on a fiduciary basis as the Supplier's bailee;
-
store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property.
-
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
-
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
-
notify the Supplier immediately if it becomes subject to any of the events listed in clause REF "a367229" \h \w \* MERGEFORMAT 13.2.5 to clause REF "a1036107" \h \w \* MERGEFORMAT 13.2.16; and
-
give the Supplier such information relating to the Goods as the Supplier may require from time to time,
-
but the Customer may resell or use the Goods in the ordinary course of its business provided that any sale shall be at full market value, and shall be a sale of the Supplier's property on the Customer's own behalf and the Customer shall deal as principal when making such a sale.
If the Customer fails to make any payment due to the Supplier under clause REF a1016456 \r \h \* MERGEFORMAT 9, or if before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause REF "a367229" \h \w \* MERGEFORMAT 13.2.5 to clause REF "a1036107" \h \w \* MERGEFORMAT 13.2.16, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, 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.
Supply of Services
The Supplier shall provide the Services to the Customer in accordance with the description set out in the Quotation and/or Service Specification in all material respects.
The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
In circumstances where there is any breach of the warranties in clauses REF _Ref290028578 \r \h \* MERGEFORMAT 7.1 or REF _Ref290028580 \r \h \* MERGEFORMAT 7.2, the Customer shall give notice to the Supplier of this fact within five (5) Business Days of the completion of the Services, and allow the Supplier to inspect the relevant Services. Subject to the foregoing, the Supplier shall at its option remedy or re-perform the defective Services, or refund the price of the defective Services in full, and this shall be the sole and exclusive remedy for the Customer in relation to the non-compliance of the Services with such warranties.
The Supplier shall use reasonable endeavours to meet any performance dates for the Services agreed with the Customer, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. The Supplier may perform the Services in advance of the quoted dates upon giving reasonable notice to the Customer.
The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
Customers Obligations
The Customer shall:
- ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification and/or Service Specification, and any other information or instructions it provides to the Supplier in connection with the Contract are complete and accurate in all respects;
-
co-operate with and comply with all reasonable instructions of the Supplier in all matters relating to the supply of the Goods and/or Services;
-
provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to deliver the Goods and/or provide the Services;
-
provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Goods and/or Services, and ensure that such information is complete and accurate in all respects;
-
prepare the Customer's premises for the supply of the Goods and/or Services, including ensuring that (a) the area surrounding the site for installation of the Goods and/or performance of the Services is clear and may be easily accessed; (b) all other works in the area are completed including all wall, floor and ceiling finishes; (c) appropriate and sufficient power sources are available, for example for the use of power tools; and (d) appropriate procedures are in place for the purposes of any applicable health and safety legislation and enforcing compliance with such procedures by its personnel;
-
obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
-
keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation.
If the Supplier's performance of any of its obligations in respect of the Goods and/or the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
-
the Supplier shall without limiting its other rights or remedies have the right to suspend performance of any of its obligations until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
-
the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause REF "a585716" \h \w \* MERGEFORMAT 8.2; and
the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
Charges and Payment
The price for Goods and/or Services shall be the price set out in the Quotation. Unless otherwise agreed by the Supplier, all sums payable shall be calculated and paid in pounds sterling (£).
Unless otherwise agreed in writing, the price of the Goods is exclusive of all costs and charges for transport and unloading of the Goods, which shall be paid by the Customer when it pays for the Goods. Unless otherwise agreed in writing, the price of transport shall include packaging and insurance.
The Supplier reserves the right to increase the price of the Goods and/or Services by giving notice to the Customer at any time to reflect any increase in the cost of the Goods and/or the Services to the Supplier that is due to:
-
any factor beyond the control of the Supplier (including foreign exchange fluctuations, alteration or enactment of any relevant rule or regulation, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
-
any request by the Customer to change the delivery or performance date(s), quantities or types of Goods and/or Services ordered, or the Goods Specification or Services Specification;
-
any additional preparatory or remedial work being required at the Customer's premises to facilitate the supply of the Goods and/or Services;
-
any delay caused by any instructions of the Customer in respect of the Goods and/or Services, or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods and/or Services, or any other Customer Default.
Where the Supplier exercises its right to increase the price for the Goods and/or Services under this clause REF _Ref290017209 \r \h \* MERGEFORMAT 9.3, it will give the Customer written notice of any such increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within two (2) weeks of the date of the Supplier's notice and the Supplier shall have the right to terminate the Contract by giving two (2) weeks' written notice to the Customer. In such circumstances the Customer shall immediately pay to the Supplier on a pro rata basis the amount due for any Goods delivered and/or Services performed by the Supplier prior to the date of termination.
Where the Supplier has (in its sole discretion) granted the Customer a credit facility, the Supplier shall invoice the Customer in respect of Goods on or at any time after completion of delivery, and in respect of Services weekly in arrears. The Customer shall pay each invoice submitted by the Supplier within thirty (30) days of the date of the invoice.
Where no credit facilities have been offered, credit limits do not cover new Orders or credit facilities have been withdrawn for any reason whatsoever, the Supplier reserves the right to require the Supplier to pay the price for the Goods and/or Services before accepting the Customer's Order.
Payment shall be made in full and cleared funds in accordance with the Supplier's instructions, and time for payment shall be of the essence of the Contract.
All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
Any queries in respect of invoices should be notified to the Supplier in writing within seven (7) days of the date of the invoice. Where any dispute arises as to the contents of any invoice the parties shall enter into good faith discussions to resolve such dispute but, for the avoidance of doubt, the Customer shall not be relieved of its obligation to pay the disputed invoice in full and on time.
Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Customer will be liable to pay interest to the Supplier on such sum from the Due Date at the rate specified by the Late Payment of Commercial Debts (Interest) Act 1998 as amended by the Late Payment of Commercial Debts Regulations 2002, accruing on a daily basis until payment is made, whether before or after any judgment.
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
In addition to its right to charge interest on late payment as set out in clause REF _Ref290019461 \r \h \* MERGEFORMAT 9.9, where any sum owed by the Customer to the Supplier under this or any other agreement is overdue or the Customer exceeds its authorised credit limit with the Supplier, the Supplier shall without prejudice to its other rights and remedies be entitled (but shall not be obliged) to do any or a combination of the following:
-
to suspend all or any part of the supply of the Goods or provision of the Services;
-
to cancel all or any part of any outstanding Order;
-
to refuse to accept any further Orders for Goods or Services;
-
to withdraw any credit facilities and/or suspend any discounts made available to the Customer; and/or
to exercise its rights to recover the Goods pursuant to clause REF _Ref290019962 \r \h \* MERGEFORMAT 6.4.
Where the Supplier elects to pursue one of its rights under clause REF _Ref290019979 \r \h \* MERGEFORMAT 9.11, the Supplier shall not be in breach of these Conditions nor shall the Supplier have any liability to the Customer.
Intellectual Property Rights
All Intellectual Property Rights produced from or arising as a result of the performance of the Contract shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all such acts, execute all such documents and enter into all such agreements with third parties as are reasonably necessary to ensure that such rights vest in the Supplier.
Nothing in the Contract shall give the Customer any rights in respect of any Intellectual Property Rights used by the Supplier in relation to the Goods and/or Services or the goodwill associated therewith and the Customer hereby acknowledges that it shall not acquire any rights in respect thereof and that all such rights and goodwill are and shall remain vested in the Supplier.
The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
All Supplier Materials are the exclusive property of the Supplier.
The Customer shall, at the expense of the Supplier, take all such steps as the Supplier may reasonably require to assist the Supplier in maintaining the validity and enforceability of the Intellectual Property Rights of the Supplier during the continuance of the Contract.
Without prejudice to the right of the Customer or any third party to challenge the validity of any Intellectual Property Rights of the Supplier, the Customer shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with the Intellectual Property Rights of the Supplier and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.
The Customer shall promptly and fully notify the Supplier of any actual, threatened or suspected infringement throughout the world of any Intellectual Property Rights of the Supplier which comes to the Customer's notice and of any claim by any third party so coming to its notice that the supply or use of the Goods and/or Services infringes any rights of any other person. The Customer shall at the request and expense of the Supplier do all such things as may be reasonably required to assist the Supplier in taking or resisting any proceedings in relation to any such infringement or claim.
The Customer represents, warrants and undertakes that the use by the Supplier of any plans, designs, specifications (including any Goods Specification and/or Service Specification) and other materials provided by the Customer (or any third party on the Customer's behalf) under the Contract shall not in any way infringe the Intellectual Property Rights or other rights of third parties. The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of such materials. This clause REF _Ref290047300 \r \h \* MERGEFORMAT 10.8 shall survive termination of the Contract.
Confidentiality
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause REF "a105953" \h \w \* MERGEFORMAT 11 shall survive termination of the Contract.
LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in these Conditions shall limit or exclude the liability of either party for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation nor where liability cannot be excluded or limited as a matter of law.
Subject to clause REF _Ref290047319 \r \h \* MERGEFORMAT 12.1, whether or not the Supplier has been advised of the possibility of such a loss, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any of the following losses (whether direct or indirect):
-
loss of profit;
-
loss of business;
-
loss of anticipated contracts and/or savings;
-
loss of goodwill or reputation;
-
loss of opportunity,
-
or for any indirect, consequential or special loss or damage whatsoever, and the parties intend that each type of loss under this clause REF _Ref290023624 \r \h \* MERGEFORMAT 12.2 shall be severable in accordance with clause REF _Ref290026133 \r \h \* MERGEFORMAT 16.6.
Subject to clause REF _Ref290047319 \r \h \* MERGEFORMAT 12.1, 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 not exceed the price paid or payable for the Goods and/or Services in respect of which the claim arose.
For the avoidance of doubt there shall be included in the amount set out in clause REF _Ref290024089 \r \h \* MERGEFORMAT 12.3 all legal and other professional fees, costs and expenses incurred by the Customer in establishing and presenting any claim against the Supplier.
Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
The Customer acknowledges that the price of the Goods and/or Services is determined on the basis of the exclusions and limitations of liability contained in these Conditions.
This clause REF "a364240" \h \w \* MERGEFORMAT 12 shall survive termination of the Contract.
Termination
Without limiting its other rights or remedies, the Supplier may terminate the Contract by giving the Customer three (3) months' written notice.
Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
-
the Customer fails to pay any amount due under this Contract on the due date for payment;
-
the Customer commits a material and/or persistent breach of any of its obligations under this Contract (other than a failure to pay) and (if such breach is remediable) fails to remedy that breach within thirty (30) days after receipt of notice in writing of the breach;
-
the Customer commits any act which brings or is likely to bring the Supplier into disrepute or which damages or is likely to damage its interests;
-
the Customer undergoes a change of Control;
-
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) 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;
-
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 a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
-
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 (being a company) 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;
-
the Customer (being an individual) is the subject of a bankruptcy petition or order;
-
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 fourteen (14) days;
-
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 (being a company);
-
a floating charge holder over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
-
a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
-
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 REF "a367229" \h \w \* MERGEFORMAT 13.2.5 to clause REF "a608611" \h \w \* MERGEFORMAT 13.2.12 (inclusive);
-
the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
-
the Supplier, acting reasonably, has serious doubts as to the Customer's solvency; or
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the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
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the Customer fails to make pay any amount due under this Contract on the due date for payment; or
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the Customer becomes subject to any of the events listed in clause REF "a367229" \h \w \* MERGEFORMAT 13.2.5 to clause REF "a1036107" \h \w \* MERGEFORMAT 13.2.16, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
Consequences of Termination
On termination of the Contract for any reason:
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the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
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the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
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the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
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clauses which expressly or by implication have effect after termination shall continue in full force and effect.
Force Majeure
For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or Customer), failure of a utility service or transport network, restraints or delays affecting shipping or carriers, inability or delay in obtaining adequate or suitable materials, act of God, war or national emergency, terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, epidemic, fire, explosion, flood, storm or default of suppliers or subcontractors.
The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than one (1) month, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately without liability by giving written notice to the Customer.
General
The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.
A person who is not a party to the Contract shall not have any rights under or in connection with it.
A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number. Notices addressed to the Supplier shall be marked for the attention of the Finance Director.
Any such notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or 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, on the next Business Day after transmission.
For the purposes of clauses REF _Ref290026280 \r \h \* MERGEFORMAT 16.8 and REF _Ref290026281 \r \h \* MERGEFORMAT 16.9, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
This 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Holmes Catering Equipment
HCE Food and Retail Concepts
Holmes Group
Holmes Catering Equipment
HCE Food and Retail Concepts
Holmes Group
