Terms & Conditions

TERMS OF BUSINES

 

INTERPRETATION The following definitions and rules of interpretation apply in these Conditions.

 

DEFINITIONS:

Bespoke Products: Goods which have been individually customised to the Customers specification, such as where for example Goods have been subject to bespoke printing or design or blended to a specific flavour

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Cancellation Payment: has the meaning detailed in Clause 15.1

Commencement Date: has the meaning given in Clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with Clause 17.8.

Goods Contract Price: the total price as set out in each Order form which totals the amount owed Goods.

Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Controller, processor, date subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.

Customer: the person or firm who purchases the Goods and/or Services from the Supplier as determined in the purchase order

Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);

Deposit: has the meaning given in accordance with clause 9.4.1.

Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.

Delivery: has the meaning given in accordance with clause 4.3

Delivery Date: the date for Delivery in accordance with clause 4.

Delivery Location: has the meaning given in Clause 4.2.

Event: the event at which the Customer uses the Goods and the Service communicated to the Supplier 35 days before the Delivery Date.

Force Majeure Event: has the meaning given to it in Clause 16.

Design Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier, ordinarily in the Order.

Goods: the goods (or any part of them) set out in the Order.

Goods Specification: the specification of the Bespoke Products contained within the Order.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, 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 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.

Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer, ordinarily in the Order.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.

Services Contract Price: the total price as set out in each Order form which totals the amount owed for the Services.

Storage Requirements: means such storage requirements as specified by the Supplier in writing or otherwise in connection with the Goods.

Supplier Materials: has the meaning given in 8.1.8.

Supplier: Wigwood Limited trading as ‘Brand Juice’ of 15G Springfield Commercial Centre, Bagley Lane, Farsley, LS28 5LY, registered in England and Wales with company number 08843824.

Third Party Delivery Agents: any third party that may be instructed by the Supplier to Deliver the Goods to the Delivery Location.

Total Contract Price: means the Goods Contract Price and the Service Contract Price.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

1.2. Interpretation:

1.2.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)

1.2.2. A reference to a party includes its [personal representatives,] successors and permitted assigns.

1.2.3. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

1.2.4. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.5. A reference to writing or written includes fax and email

 

2. BASIS OF CONTRACT

2.1. The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions.

2.2. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (‘Commencement Date’).

2.3. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s marketing material, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They do not constitute to be an offer to the Customer and shall not form part of the Contract nor have any contractual force unless expressly agreed to by the Supplier.

2.4. 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 law, trade custom, practice or course of dealing.

2.5. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

2.6. All of these Conditions shall apply to the supply of both Goods and Services except where application of these Conditions is relevant to the application of either the Goods or Services independently.

 

3. GOODS

3.1. The Goods are those described in the Order Form.

3.2. The Suppliers accept no responsibility for the colour of the Goods as the colour is dependent on the ingredients used. The Customer acknowledges that the Supplier cannot match the colour scheme of the Customer’s company or otherwise.

3.3. To the extent that the Goods are to Bespoke Products to be manufactured in accordance with a Goods Specification supplied by the Customer at least 14 days before the Delivery Date, 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 costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or 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 Goods Specification. This clause 3.2 shall survive termination of the Contract.

3.4. The Supplier reserves the right to amend the Goods Specification or the Goods if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

 

4. DELIVERY OF GOODS

4.1. The Supplier shall ensure (or take reasonable endeavours to ensure) that:

4.1.1. each delivery of the Goods is delivered to the Delivery Location, unless otherwise agreed in writing;

4.1.2. any delivery is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods, special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

4.1.3. it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. 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.

4.2. The Supplier shall deliver the Goods to the Delivery Location set out in the Order or such other location as the parties may agree in writing at any time after the Supplier notifies the Customer that the Goods are ready.

4.3. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

4.4. Delivery shall not occur until any outstanding balances owed to the Supplier by the Customer have been paid in accordance with this agreement the day before the Delivery Date.

4.5. The Proposed Delivery Date determined for delivery of the Goods are approximate only, and the time of delivery is not of the essence.

4.6. If the Goods are required for an Event, the Customer shall order the Goods to be Delivered at least one Business Day prior to the Event as shown in the Delivery Date.

4.7. Time is not of the essence and the Supplier shall not be liable for any loss or liability arising from the late delivery of the Goods or in the event that the Goods are delivered after the date of an Event.

4.8. Any dates for delivery are estimates only. The Customer must order goods a minimum 14 days before the Event to allow sufficient time for delivery for the Delivery Date.

4.9. If the Customer requires the Goods for an Event, the Customer shall notify the Supplier the date of the Event [14] days prior to the date of the Event and the Supplier shall use their reasonable endeavours to achieve Delivery within the dates requested but the Supplier accepts no liability for Delivery occurring after the date of an Event.

4.10. The Customer may, with the prior written agreement of the Supplier, arrange collection of the Goods from such location as agreed with the Supplier from time to time. If the Customer agrees to pick up the Goods with the Supplier, then Delivery of the Goods shall be completed on the completion of Customer collecting the Goods from the Supplier.

4.11. 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.

4.12. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, the Customer’s failure to provide the Supplier with adequate delivery instructions, Third Party Delivery Agents or any other instructions from the Customer that are relevant to the supply of the Goods.

4.13. If the Customer fails to accept delivery of the Goods on the Delivery Date after the Supplier has notified the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event, Third Party Delivery Agent or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:

4.13.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the consecutive day after the Delivery Date following the day on which the Supplier notified the Customer that the Goods were ready; and

4.13.2. the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.14. If at 9.00 am two days from the Delivery Date when the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted 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, charge the Customer for any shortfall below the price of the Goods.

4.15. If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.

 

5. QUALITY OF GOODS

5.1. The Supplier warrants that on delivery the Goods shall:

5.1.1. conform in all material respects with the Goods Specification;

5.1.2. be free from material defects in design, material and workmanship; and

5.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

5.1.4. be fit for any purpose held out by the Supplier.

5.2. Subject to Clause 5.3, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:

5.2.1. the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Clause 5.1;

5.2.2. the Supplier is given a reasonable opportunity to examine the Goods on Delivery; and

5.2.3. 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.

5.3. The Supplier shall not be liable for the Goods’ failure to comply with the warranty in Clause 5.1 if:

5.3.1. the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

5.3.2. 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;

5.3.3. the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;

5.3.4. the Customer alters or repairs such Goods without the written consent of the Supplier;

5.3.5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

5.3.6. the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

5.4. Except as provided in this Clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 5.1.

5.5. The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

 

6. TITLE AND RISK

6.1. The risk in the Goods shall pass to the Customer on completion of Delivery.

6.2. 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 the day before the Delivery Date, in which case title to the Goods shall pass at the time of Delivery of the Goods; and

6.3. Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

6.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;

6.3.4. notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.2.1 to clause 14.2.4; and

6.3.5. give the Supplier such information relating to the Goods as the Supplier may require from time to time.

6.4. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.2.1 to clause 14.2.4, then, without limiting any other right or remedy the Supplier may have:

6.4.1. the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and

6.4.2. the Supplier may at any time:

6.4.2.1. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

6.4.2.2. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored to recover them.

 

7. SUPPLY OF SERVICES

7.1. The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.

7.2. The Supplier shall use reasonable endeavours to meet any performance dates for the Services specified in Order provided that the Customer has provided a Service Specification [14] days before the Proposed Delivery Date.

7.3. If the Customer provides the Service Specification less than 14 days before the Proposed Delivery Date, the Supplier will use reasonable efforts to meet the Proposed Delivery Date but will not be responsible for any liability if it is unable to meet the Proposed Delivery Date due to the Customer providing the Service Specification 14 days before the Proposed Delivery Date.

7.4. Time is not of the essence for the delivery of the Services.

7.5. The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

7.6. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

 

8. CUSTOMER’S OBLIGATIONS

8.1. The Customer shall:

8.1.1. ensure that the terms of the Order and any information it provides in the Service Specification and the Order Form and the Services Specification are complete and accurate;

8.1.2. promptly co-operate with the Supplier in all matters relating to the Services;

8.1.3. 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 provide the Services;

8.1.4. promptly provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

8.1.5. store the Goods in accordance with the Storage Requirements.

8.1.6. prepare the Customer’s premises for the delivery of the Goods either by the Supplier or a Third Party Supplier;

8.1.7. obtain and maintain all necessary licences, permissions and consents which may be required for the Goods or the use of the Services before the Proposed Delivery Date;

8.1.8. comply with all applicable laws, including health and safety laws in the storage of the Goods and the use of the Services;

8.1.9. keep 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;

8.2. Where the Services are to be delivered either at the Customers premises or at an alternative premises other than the Customer’s premises, the Customer by either the Supplier or a Third Party Delivery Agent, the Customer shall ensure that:

8.2.1. the Supplier or Third Party Delivery Agent is given access to the premises including, where necessary, any applicable access passes or codes to enter the premises;

8.2.2. the Customer pays any applicable charges, licences, levies, including any applicable corkage fees or similar, or other fees howsoever arising in respect of the Supplier providing the Services at the Event or premises for the delivery of the Services; and 8.2.3. the alternative premises complies with the Storage Requirements.

8.3. At all times, the Customer shall be responsible for providing:

8.3.1. all applicable power outlets, electricity and generators as required by the Supplier to comply with the Storage Requirements; and

8.3.2. any catering requirements associated with the Event.

8.4. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default) without limiting or affecting any other right or remedy available to it):

8.4.1. the Supplier shall have the right to suspend performance of the Services or Delivery of the Goods until the Customer remedies the Customer Default; and

8.4.2. the Customer Default shall relieve the Supplier from the performance of any outstanding obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

8.5. 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 8; and

8.6. 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.

 

9. CHARGES AND PAYMENT

9.1. The price for Goods:

9.1.1. shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of the order; and

9.1.2. shall be exclusive of all costs and charges of:

9.1.2.1. packaging;

9.1.2.2. insurance

9.1.2.3. transport of the Goods; and

9.1.2.4. storage of the Goods in accordance with the Storage Requirements once Delivery has occurred

9.2. The charges for Services are set out in the Order or, if no price is quoted shall be calculated on a time and materials basis:

9.2.1. the charges shall be calculated in accordance with the Supplier’s daily fee rates,

9.2.2. the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day worked on Business Days;

9.2.3. the Supplier shall be entitled to charge an overtime rate of 25% of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services for longer than the eight-hour day referred to in clause 9.2.2 ; and

9.2.4. the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

9.3. The Supplier reserves the right to:

9.3.1. increase the charges for the Services on notice to the Customer;

9.3.2. increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:

9.3.2.1. any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs or supply chain shortages);

9.3.2.2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

9.3.2.3. any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.

9.4. The Charges for the Goods and Service shall be payable as follows:

9.4.1. The Customer shall pay 100% of the Goods Contract Price within 7 days of the Order;

9.4.2. Where the Order is for Services, payment for the Services Contract Price is due 21 days prior to the Delivery.

9.5. The Customer shall pay each invoice submitted by the Supplier:

9.5.1. within 7 days of the date of the invoice and

9.5.2. in full and in cleared funds to a bank account nominated in writing by the Supplier, and

9.5.3. time for payment shall be of the essence of the Contract.

9.6. 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.

9.7. If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 14, the Customer 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 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%.

9.8. 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).

 

10. INTELLECTUAL PROPERTY RIGHTS

10.1. The Supplier acknowledges that the Customer owns any Intellectual Property Rights in any materials provided by the Customer.

10.2. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

10.3. All Intellectual Property Rights in or arising out of or in connection with the Services or as applicable the Goods, shall be owned by the Supplier.

10.4. The Supplier grants to the Customer, a worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Services and the Deliverables in its business.

10.5. The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.

10.6. The Customer grants the Supplier a worldwide, non-exclusive, royalty free licence to utilise images or similar content of the Goods produced for their own marketing material and the Customer acknowledges that such marketing material may include logos or other intellectual property belonging to the Customer.

 

11. DATA PROTECTION

11.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

11.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.

11.3. Without prejudice to the generality of clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.

11.4. Without prejudice to the generality of clause 11.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:

11.4.1. process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;

11.4.2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

11.4.3. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

11.4.4. not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

11.4.4.1. the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

11.4.4.2. the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;

11.4.4.3. the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

11.4.4.4. the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data; 11.4.5. assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

11.4.6. notify the Customer without undue delay on becoming aware of a personal data breach;

11.4.7. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and

11.4.8. maintain complete and accurate records and information to demonstrate its compliance with this clause and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.

11.5. The Customer consents to the Supplier appointing suitable third-party processors, as required by the Supplier, of personal data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause and in either case which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause.

11.6. Either party may, at any time on not less than 30 days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

 

12. CONFIDENTIALITY

12.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 12.2.

12.2. Each party may disclose the other party’s confidential information:

12.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause; and

12.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

12.3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

 

13. LIMITATION OF LIABILITY

13.1. The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

13.2. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

13.3. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

13.3.1. death or personal injury caused by negligence;

13.3.2. fraud or fraudulent misrepresentation;

13.3.3. breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and

13.3.4. defective products under the Consumer Protection Act 1987.

13.4. Subject to clause 13.3, the Supplier’s total liability to the Customer shall not exceed 50% of the Contract Price.

13.5. Subject to clause 13.3, the types of loss listed below are wholly excluded by the parties:

13.5.1. loss of profits;

13.5.2. loss of sales or business;

13.5.3. loss of agreements or contracts;

13.5.4. loss of anticipated savings;

13.5.5. loss of use or corruption of software, data or information; and

13.5.6. loss of or damage to goodwill.

13.6. The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

13.7. Unless the Customer notifies the Supplier that it intends to make a claim within the notice period (Claim Notice), the Supplier shall have no liability for that claim. The notice period for a Claim Notice shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The Claim Notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

13.8. This clause shall survive termination of the Contract.

 

14. TERMINATION

14.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 1 months’ written notice.

14.2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

14.2.1. the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing to do so;

14.2.2. the other party 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), 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

14.2.3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

14.2.4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

14.3. Without affecting any other right or remedy available to it, 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 the Contract on the due date for payment.

14.4. Without affecting any other right or remedy available to it, the Supplier may 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 the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2.2 to clause 14.2.4 , or the Supplier reasonably believes that the Customer is about to become subject to any of them.

 

15. CONSEQUENCES OF TERMINATION

15.1. If the Contract is terminated or the Order cancelled the following provisions shall apply:

15.1.1. If the Event was in the United Kingdom, the Customer shall pay to the Supplier a Cancellation Payment calculated as follows:

15.1.1.1. If Order is cancelled or the Contract terminated more than 28 days prior to the Proposed Delivery Date:

15.1.1.1.1. the Supplier shall be entitled to retain the 50% of the order value; and

15.1.1.1.2. The Customer shall pay, within 7 days of cancellation, for any Bespoke Products which have been produced and any out-of-pocket expenses incurred by the Supplier as set out in clause 9.2.4.

15.1.1.2. if the Order is cancelled or the Contract is terminated with less than 28 days’ notice prior to the Proposed Delivery Date :

15.1.1.2.1. the Customer shall pay to the Supplier 75% of the Goods Contract Price;

15.1.1.2.2. the Deposit will be retained and will be set off against the value of the 75% of the Goods Purchase Price with the balance owed to the Supplier to be paid within 7 days of cancellation; and

15.1.1.2.3. The Customer shall pay for any Bespoke Products which have been produced and any out-of-pocket expenses incurred by the Supplier as set out in Clause 9.2.4.

15.1.1.3. If Order is cancelled or the Contract terminated with less than 21 days the Customer shall;

15.1.1.3.1. pay to the Supplier the Total Contract Price within 7 days; and

15.1.1.3.2. the deposit shall be retained by the Supplier and will be set off against the Total Contract Price owed by the Customer to the Supplier.

15.1.2. Where the Event was located outside of the United Kingdom, the Customer shall pay to the Supplier a Cancellation Payment calculated as follows:

15.1.2.1. If Order is cancelled or the Contract terminated more than 42 days prior to the Proposed Delivery Date:

15.1.2.1.1. the Supplier shall be entitled to retain 50% of the order value;

15.1.2.1.2. the Customer shall pay, within 7 days of cancellation, for any Bespoke Products which have been produced and any out of pocket expenses incurred by the Supplier as set out in Clause 9.2.4.

15.1.2.2. If Order is cancelled or the Contract terminated with less than 42 days’ notice prior to the Event:

15.1.2.2.1. the Customer shall pay to the Supplier 75% of the Goods Contract Price;

15.1.2.2.2. the Deposit will be retained and will be set off against the value of the 75% of the Goods Purchase Price with the balance owed to the Supplier to be paid within 7 days of cancellation; and

15.1.2.2.3. The Customer shall pay for any Bespoke Products which have been produced and any out-of-pocket expenses incurred by the Supplier as set out in Clause 9.2.4.

15.1.2.3. If an Order is cancelled or the Contact Terminated with less than 28 days’ notice prior to the Event:

15.1.2.3.1. the Customer shall pay to the Supplier the Total Contract Price;

15.1.2.3.2. the deposit shall be retained by the Supplier and will be set off against the Total Contract Price owed by the Customer to the Supplier.

15.2. On termination of the Contract or cancellation of the Order, the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for and title to the Goods has not passed to the Customer in accordance with clause 6.

15.3. If the Customer fails to return Supplier Materials any Deliverables or Goods under clause 15.2 then the Supplier may enter the Customer’s premises and take possession of them.

15.4. Upon Termination of the Contact or cancellation of the Order, until the Goods have been returned to the Supplier in accordance with clause 15.2, the Customer shall be solely responsible for them, ensuring that no damage occurs to the Goods, that they are stored in accordance with the Storage Requirements and the Customer will not use them for any purpose not connected with this Contract.

15.5. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

15.6. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

 

16. FORCE MAJEURE

16.1. 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 events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.

 

17. GENERAL

17.1. Assignment and other dealings

17.1.1. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

17.1.2. The Customer 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 without the prior written consent of the Supplier.

17.2. Notices

17.2.1. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

17.2.1.1. 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

17.2.1.2. sent by email to the address specified in the Order

17.2.2. Any notice shall be deemed to have been received:

17.2.2.1. if delivered by hand, on signature of a delivery receipt; and

17.2.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and

17.2.2.3. 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 17.2, 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.

17.2.3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17.3. Severance

17.3.1. 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.

17.4. Waiver

17.4.1. 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.

17.5. No partnership or agency

17.5.1. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

17.6. Entire agreement

17.6.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

17.6.2. 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 based on any statement in the Contract.

17.6.3. Nothing in this clause shall limit or exclude any liability for fraud.

17.7. Third party rights

17.7.1. 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.

17.8. Variation

17.8.1. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

17.9. Governing law

17.9.1. 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.

17.10. Jurisdiction

17.10.1. Each party irrevocably agrees that the courts of England and Wales 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.