These are the General Conditions (“the Conditions”) that apply to any Goods or Servies that you (the “Installer”) buy from Freedom Heat Pumps Limited (“FHP” or the “Supplier”). These terms apply to your contract unless we say otherwise, or we provide you with a different set of terms.
Your attention is drawn particularly to Clause 3, which details the warranties we will provide, and Clause 11, which specifies the limits of our respective liability to each other.
Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Affiliate: an entity that, either directly or indirectly, controls, is controlled by or is under common control with the relevant entity, where “control” means the ability to direct the affairs of another by ownership, contract or otherwise.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Installer for the supply of the Goods or Services in accordance with clause 8.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time.
Contract: the contract between FHP and the Installer for the supply of Goods or Services in accordance with these Conditions and the Proposal.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Installer: the person or firm who purchases Goods or Services from FHP.
Installer Materials: all documents, information, items and materials in any form, whether owned by the Installer or a third party, which are provided by the Installer to FHP in connection with the Goods or Services.
Installer Default: has the meaning set out in clause 7.3.
Deliverables: the deliverables set out in the Proposal produced by FHP for the Installer.
End User: the Installer’s customer that purchases or uses the Goods or Services provided by the Installer.
Force Majeure Event: means an event, circumstance or cause beyond a party’s reasonable control.
Goods: the products to be provided to the Installer as requested in an Order or specified in a Proposal.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the request from the Installer for Goods or Services.
Proposal: FHP proposal or quote for Goods or Services to be provided to the Installer.
Services: the services, (including technical support, training courses, and the Deliverables), as set out in the Proposal and as further detailed in the Schedule.
Site: a site or premises (as set out in the Proposal or as otherwise agreed) at which FHP has agreed to deliver the Goods or provide the Services.
Supplier Materials: has the meaning set out in clause 7.2(h).
1.2 Interpretation:
(a) reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Installer to purchase Goods or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when FHP issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date), or FHP issues a proposal which is available for acceptance by the Installer.
2.3 Any samples, drawings, descriptive matter or advertising issued by FHP, and any descriptions or (financial) illustrations provided by FHP, are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Installer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any Proposal given by FHP is only valid for a period of 30 Business Days from its date of issue.
3. Goods
3.1 The Goods are described in the Proposal or as otherwise communicated by FHP.
WARRANTY
3.2 FHP warrants, that on delivery, the Goods shall be manufactured and supplied in accordance with the description contained in FHP’s specification and manufactured in accordance with all applicable British standards which relate specifically to the goods.
3.3 All terms, conditions and warranties (whether implied or made expressly) whether by FHP or its servants or agents or otherwise (other than those express warranties set out in the current edition of the FHP’s specification) relating to the quality and/or fitness for the purpose of the goods or any of the goods are excluded.
3.4 FHP may from time to time make changes in the specification of the goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for the purpose of the goods.
3.5 FHP will not be liable for Goods’ failure to comply with clauses 3.2 if the defect or breach arises because (i) a matter to which the Installer is able to claim under the warranty provided by the manufacturer of the Goods or which the Installer would be able to claim but for an act or omission of yours (ii) the Installer failed to follow FHP or the manufacturer’s written instructions as to use and maintenance of the Goods or good operating practice regarding the same (iii) the Installer attempted to re-install, alter or repair such Goods without written consent from FHP (iv) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage on the Installer’s part or abnormal working conditions (v) the defect arises because of FHP following any drawing, design or specification supplied by the Installer.
3.6 If FHP provides any Goods covered by a third-party manufacturer’s warranty, FHP shall use their reasonable endeavours to either: (i) pass through such warranty to the Installer (as set out in the Proposal) without alteration; or (ii) to the extent permitted, FHP shall assign to the Installer all warranties, guarantees and indemnities provided by the manufacturer. For the avoidance of doubt, the Installer’s rights under a manufacturer warranty are in addition to and not in substitution of any rights the Installer may have under this Agreement. The Installer acknowledges and accepts that any claim brought under this clause 3.6 shall be brought against the manufacturer in accordance with the process set out in the Proposal.
3.7 Where the manufacturer’s warranty in respect of the Goods must be registered or activated by the End User or the Installer, then the Installer acknowledges that they are responsible for undertaking this action and ensuring the warranty has been registered in accordance with the manufacturer’s instructions or requirements.
3.8 Except as provided in this clause 3, FHP shall have no liability to the Installer in respect of the Goods’ failure to comply with the warranty set out in clause 3.1.
3.9 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.
4. Delivery of Goods
4.1 FHP shall use reasonable endeavours to deliver the Goods to the Site by the Delivery Date (although the Installer agrees that the Delivery Date is indicative only and, at our discretion, is subject to change).
4.2 Delivery is completed on the completion of unloading of the Goods at the Site.
4.3 FHP may deliver the Goods by instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.4 Delays in the delivery of an Order shall not entitle the Installer to:
(a) refuse to take delivery of the Order; or
(b) claim damages; or
(c) terminate this agreement, subject always to clause 11
4.5 FHP shall have no liability for any failure or delay in delivering an Order to the extent that any such failure or delay is caused by the Installer’s failure to comply with its obligations under this agreement.
4.6 If the Installer fails to take delivery of an Order then, except where that failure or delay is caused by the Supplier’s failure to comply with its obligations under this agreement or a Force Majeure Event:
(a) delivery of the Order shall be deemed to have been completed at 9.00 am on the Delivery Date; and
(b) FHP shall store the Order until the Installer takes possession of the Order, and charge the Installer for all storage and related costs and expenses (including insurance).
4.7 Each delivery of Goods shall be accompanied by a delivery note from FHP showing the Order Number, the date of the Order, the type and quantity of Products included in the Order, including the code numbers of the Products, and, in the case of Products being delivered by instalments, the outstanding balance of Products specified in an Order remaining to be delivered.
4.8 The Installer may reject any Goods delivered to it that do not comply with clause 3.2, within the warranty period set out in the Proposal provided that:
(a) Notice of rejection is given to the Supplier
(i) In the case of a defect that is apparent on normal visual inspection, within 5 Business Days of Delivery; and
(ii) In the case of a latent defect, within a reasonable time of the latent defect having become apparent;
4.9 If the Installer fails to give notice of rejection in accordance with clause 4.8, it shall be deemed to have accepted the Goods.
5. Title and Risk
5.1 The risk in the Goods shall pass to the Installer on completion of delivery.
5.2 Title to the Goods shall not pass to the Installer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment
5.3 Until title to the Goods has passed to the Installer, the Installer shall:
(a) store the Goods separately from all other goods held by the Installer 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 on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 12.1(b) and (d); and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Installer.
5.4 Subject to clause 5.5, the Installer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Installer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Installer immediately before the time at which resale by the Installer occurs.
5.5 At any time before title to the Goods passes to the Installer, the Supplier may:
(a) by notice in writing, terminate the Installer’s right under clause 5.4 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Installer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Installer fails to do so promptly, enter any premises of the Installer or of any third party where the Goods are stored in order to recover them.
6. Supply of Services
6.1 FHP shall supply the Services using all reasonable care and skill to the Installer in accordance with the Proposal in all material respects and in accordance with the Proposal.
6.2 FHP shall use all reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
6.3 FHP reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and FHP shall notify the Installer in any such event.
6.4 For the avoidance of doubt, any designs provided are based upon data requested and received from the Installer. FHP base their designs and advice on such data and are not responsible for any errors in designs or advice resulting from poor quality or inaccurate data provision by the Installer.
7. Installer’s obligations
7.1 By accepting this Agreement, the Installer warrants to FHP that the Installer is requesting the Goods and Services from FHP in the course of and for business purposes.
7.2 The Installer represents and warrants that:
(a) they shall conduct its own assessment of the End User’s premises and ascertain precise measurements and calculations to ensure suitability of the Goods and Services in accordance with MCS guidelines and good industry practice;
(b) (unless otherwise agreed) they shall conduct a full heat loss calculation and/or full system design.
(c) the terms of the Order and any information it provides to FHP (either before or during the commencement of the Agreement) in respect of a Proposal are complete and accurate;
(d) they shall co-operate with FHP in all matters relating to the Goods or Services;
(e) they shall provide FHP with such information and materials as FHP may reasonably require in order to supply the Goods or Services, and ensure that such information is complete and accurate in all material respects;
(e) they shall prepare the Installer’s premises and ensure they are suitable for the supply of the Goods or Services;
(f) they shall ensure that the nature of the Goods and Services, the specification and installation process is fully known to and consented to by any relevant End User or third party;
(g) they shall 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;
(h) they shall keep all materials, equipment, documents and other property of FHP (Supplier Materials) at the Installer’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;
(i) they shall be responsible for and handle all complaints raised by the End User;
(j) they shall forward any manufacturer warranty-related issues to the manufacturer and provide the manufacturer with all necessary information and documentation required to process any warranty claim; and
(k) they shall comply with any additional obligations as set out in the Proposal.
7.3 If FHP’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Installer or failure by the Installer to perform any relevant obligation (Installer Default):
(a) without limiting or affecting any other right or remedy available to it, FHP shall have the right to suspend performance of the Services until the Installer remedies the Installer Default, and to rely on the Installer Default to relieve it from the performance of any of its obligations in each case to the extent the Installer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) FHP shall not be liable for any costs or losses sustained or incurred by the Installer arising directly or indirectly from FHP’s failure or delay to perform any of its obligations as set out in this clause 7.3; and
(c) the Installer shall reimburse FHP on written demand for any costs or losses sustained or incurred by FHP arising directly or indirectly from the Installer Default.
7.4 The Installer:
(a) shall indemnify FHP in full 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 costs (calculated on a full indemnity basis), and all other reasonable professional costs and expenses) suffered or incurred by FHP arising out of or in connection with the Installer’s default under this Agreement, any third party claim or claim brought against FHP, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Supplier Materials.
8. Charges and payment
8.1 The price of the Goods or Services shall be the price set out in the confirmation of the Proposal , as may be amended from time to time.
8.2 FHP may, by giving notice to the Installer at any time up to 10 Business Days before delivery, increase the price of the Goods or Services to reflect any increase in the cost of the Goods or Services that is due to:
(a) any factor beyond FHP’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Installer to change the delivery date(s), quantities or types of Goods or Services ordered, or the Specification; or
(c) any delay caused by any instructions of the Installer or failure of the Installer to give FHP adequate or accurate information or instructions.
8.3 The price of the Goods or Services:
(a) excludes amounts in respect of value added tax (VAT), which the Installer shall additionally be liable to pay to FHP at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods or Services, which shall be invoiced to the Installer.
8.4 FHP may invoice the Installer for the Goods or Services on or at any time after the completion of delivery.
8.5 The Installer shall pay each invoice submitted by FHP:
(a) within 30 days of the date of the invoice and confirmed in writing to the Installer; and
(b) in full and in cleared funds to a bank account nominated in writing by FHP, and
time for payment shall be of the essence of the Contract.
8.6 If the Installer fails to make a payment due to FHP under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12, the Installer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Intellectual property rights
9.1 In relation to the Goods or Services:
(a) FHP and its licensors shall retain ownership of all Intellectual Property Rights in the Goods or Services and the Supplier Materials;
(b) FHP grants the Installer, or shall procure the direct grant to the Installer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Agreement to use the Goods or Services and the Supplier Materials for the purpose of receiving and using the Goods or Services and the Supplier Materials for its internal business purposes; and
(c) the Installer shall not sub-license, assign or otherwise transfer the rights granted in clause 9.1(a) to any third party (whether within its group or otherwise).
9.2 If either party (the “Indemnifying Party”) is required to indemnify the other party (the “Indemnified Party”) under this clause 9, the Indemnified Party shall:
(a) notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at clause 9.2(a) or clause 9.2(b) (as applicable) (“IPRs Claim”);
(b) allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
(c) provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
(d) not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
10. Data protection
10.1 In providing the Goods or Services to the Installer and in order to prevent fraud, to check the Installer’s identity and to prevent money laundering, FHP may ask their credit intelligence partners (as they may engage from time to time) and their credit insurers to run a credit check on the Installer’s business. FHP may also disclose details of how the Installer conducts their account to such companies. This information may be used by other credit intelligence companies for making credit decisions about the Installer’s business, the Installer, and the people with whom the Installer is financially associated, for fraud prevention, money laundering prevention and occasionally for tracing debtors. Information used for these purposes will include publicly available information such as corporate accounts and county court judgments.
10.2 FHP may perform a check on the Installer if they are an individual associated with a Business, such as company director. FHP do this in order to prevent fraud, to check the Installer’s identity, to prevent money laundering and for account management purposes. Information used for these purposes will include publicly available information such as the electoral roll, county court judgments, assets registered in the Installer’s name on public registers, such as the Land Registry, bankruptcy orders and repossessions. FHP shall not carry out these checks without obtaining the Installer’s prior consent.
11. Limitation of liability:
11.1 Notwithstanding anything to the contrary in this Contract, the Supplier’s liability to the Installer for:
(i) death or personal injury caused by the negligence of the Supplier, its employees, agents or sub-contractors;
(ii) breach of any condition as to title or quiet possession implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; or
(iii) for fraud (including, fraudulent misrepresentation),
or any other form of loss which cannot by relevant law be limited or excluded, shall not be limited (but nothing in this clause confers any right or remedy upon the Installer to which it would not otherwise be entitled).
11.2 Subject to clause 11.1, FHP’s total liability, whether arising in contract, tort (including negligence), restitution, breach of statutory duty or misrepresentation or otherwise, shall not exceed:
(i) in respect to any and all claims arising in relation to an Order (and any Goods or Services delivered under it), a sum equal to the price of the Goods ordered by the Installer, as set out in the Proposal.
11.3 Subject to clause 11.1, neither party shall be liable to the other in contract, tort (including negligence), restitution, breach of statutory duty or misrepresentation or otherwise for any of the following loss or damage suffered by the other party that arises under or in connection with this Contract:
10.3.1 loss of goodwill (but not loss of reputation);
10.3.2 loss of business or revenue;
10.3.3 loss of profits;
10.3.4 loss of business opportunity; or
10.3.5 loss of anticipated savings,
11.4 and the parties agree that each of the sub-clauses to this clause 11.4 shall be individually severable to the extent that such exclusions are found to be unenforceable or which cannot be excluded by law.
11.5 The limits and exclusions in this clause reflect the insurance cover FHP has been able to arrange and the Installer is responsible for making its own arrangements for the insurance of any excess liability.
11.6 This clause 11 shall survive termination of the Contract.
Insurance
11.7 During the Contract and for a period of six years afterwards, the Installer shall maintain in force suitable insurance policies in place in respect of the goods and services that it will provide. For the avoidance of doubt, the Installer’s liability to the Supplier under this Agreement shall not be limited or reduced by the Installer’s insurance coverage.
11.8 The Installer shall upon the Supplier’s request, produce the insurance certificates giving details of cover, relating to the insurance policies set out at clause 11.6.
12. Termination
12.1 Without affecting any other right or remedy available to it, FHP may terminate the Contract with immediate effect by giving written notice to the Installer if:
(a) the Installer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within [20] Business Days of that party being notified in writing to do so;
(b) the Installer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Installer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Installer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
12.2 Without affecting any other right or remedy available to it, FHP may suspend the supply of Goods or Services under the Contract or any other contract between the Installer and FHP if:
(a) the Installer fails to pay any amount due under the Contract on the due date for payment;
(b) the Installer becomes subject to any of the events listed in clause 12.1(a) 12.1(b) or 12.1(d), or FHP reasonably believes that the Installer is about to become subject to any of them; and
(c) FHP reasonably believes that the Installer is about to become subject to any of the events listed in Clause 12.1(b).
13. Consequences of termination
13.1 On termination or expiry of the Contract:
(a) the Installer shall immediately pay to FHP all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods or Services supplied but for which no invoice has been submitted, FHP shall submit an invoice, which shall be payable by the Installer immediately on receipt;
(b) the Installer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Installer fails to do so, then FHP may enter the Installer’s premises and take possession of them. Until they have been returned, the Installer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
13.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14. General
14.1 Product Recall
(i) If the Installer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Supplier in writing and attach a copy of the Recall Notice.
(ii) Unless required by law, the Installer may only undertake a recall or withdrawal of the Goods from the market with the written permission of the Supplier and only then in strict compliance with the Supplier’s instructions as to the process of implementing the withdrawal.
14.2 Force majeure.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay for non-performance continues for more than 90 days, the party not affected may terminate the Contract by giving written notice to the affected party.
14.3 Assignment and other dealings.
(a) FHP may assign to an Affiliate or otherwise deal with the benefit and burden of this Contract (and any Orders placed under it) without any further consent or authority from the Installer. FHP may exercise any of its rights, or subcontract the performance of any of its obligations, under this Contract through any of its Affiliates.
(b) The Installer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
14.4 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 14.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 14.4; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
14.5 Entire agreement
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
14.6 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.7 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
14.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 14.8 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.9 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.9(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 14.9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
14.10 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
14.11 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
14.12 Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Last updated: 07 April 2025