Terms & Conditions of Sale

This Terms and Conditions of Sale govern the sale, license or resale, as applicable, of third-party Products and the provision of associated Services by Smarter Interactive Ltd.

Definition of Terms

1. INTERPRETATION

The definitions and rules of interpretation in this Clause apply in these Terms.

1.1 Definitions:

“Business Day” means Monday to Friday, excluding bank and other public holidays, unless otherwise agreed in writing;

“Contract” means the Customer's Purchase Order and Supplier's acceptance of it in accordance with Clause 3.3;

“Customer” means the person, firm or company who purchases Products and/or Services from Supplier for use in its business or the business of a third party end-user or other customer and not for use as a consumer (as defined by applicable law);

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extension of, such rights , and all similar or equivalent rights or forms of protection in any part of the world;

“Mandatory Policies” means any Supplier’s business policies published on Supplier’s website from time to time;

“Products” means the equipment and/or Software agreed in the Contract to be purchased by the Customer from Supplier (including without limitation any part or parts of it);

“Purchase Order” means an official document, or email from an authorised signatory of the Customer, issued by the Customer committing to pay Supplier for the sale of specific goods or services to be delivered in the future;

“Quote” or “Quotation” means a written statement detailing the expected price(s) to the Customer for the specific Services or Products as set out therein;

“Services” means any configuration or installation services provided by Supplier in conjunction with the supply of Products;

“Software” means any intellectual (non-tangible) product or material designed for use on or in conjunction with a computer or data processing device. This shall include computer programs and computer data but NOT the medium of its storage or transmission;

“Supplier” means Smarter Interactive Limited;

“Terms” means these terms and conditions;

“VAT” means value added tax chargeable under English law for the time being and any similar additional tax.

1.2 Clause headings shall not affect the interpretation of these Terms.

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

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.8 A reference to writing or written includes faxes and email.

1.9 References to Clauses are to the clauses of these Terms.

2. APPLICATION OF TERMS

2.1 These Terms shall:

(a) apply to and be incorporated in the Contract; and

(b) prevail over any inconsistent terms or conditions contained in or referred to in the Customer's Purchase Order, or specification, or implied by law, trade custom, practice or course of dealing.

2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on Supplier unless in writing and signed by a duly authorised representative of Supplier.

2.3 All of these Clauses shall apply to the supply of both Products and Services except where application to one or the other is specified.

3. BASIS OF SALE

3.1 Any quotation is valid for a period of thirty (30) calendar days only, unless otherwise agreed in writing by Supplier, and Supplier may withdraw it at any time by notice to the Customer.

3.2 The Customer shall issue a Purchase Order if the Customer wishes to order Products or accept a Quotation for Products and/or Services. Any such Purchase Order shall be deemed to be an offer by the Customer subject to these Terms. The Customer shall ensure that its Purchase Order is complete and accurate for the Customer’s requirements.

3.3 A binding Contract shall not come into existence between Supplier and the Customer unless and until the earlier of Supplier:

(a) issuing to the Customer a written acceptance of the Customer’s Purchase Order from Supplier’s finance department;

(b) initiating procurement of the Products for delivery to the Customer;

(c) delivering the Products to the Customer or Customer’s collection of the Products from Supplier; or

(d) commencing or executing the Services.

3.4 Supplier may deliver the Products and/or Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

3.5 No Contract may be cancelled by the Customer, except with the agreement in writing of Supplier and provided that the Customer indemnifies Supplier in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred by Supplier as a result of cancellation.

4. QUANTITY AND DESCRIPTION

4.1 The quantity and description of the Products and/or Services shall be as set out in Supplier's acknowledgement of the Customer’s Purchase Order or (if there is no acknowledgment of the Customer’s Purchase Order) the Quotation.

4.2 All samples, drawings, descriptive matter, specifications and advertising issued by Supplier, and any descriptions or illustrations contained in Supplier's catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.

4.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Supplier shall be subject to correction without any liability on the part of Supplier.

4.4 Supplier reserves the right (but does not assume the obligation) to make any changes in the specification of the Products which are required to conform with any applicable legislation or, where the Products are to be supplied to the Customer's specification, which do not materially affect their quality or performance. Where Supplier is not the manufacturer of the Products, Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to Supplier.

4.5 Supplier reserves the right to:

(a) make minor changes to its Products;

(b) purchase Products from different suppliers; and

(c) substitute Products supplied to the Customer with suitable alternatives of equivalent or superior specification.

4.6 Supplier's employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Products and/or Services.

5. PRICES

5.1 All prices Quoted are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties unless stated otherwise.

5.2 The price of the Products and/or Services shall be Supplier's Quoted price or, where no price has been Quoted (or a Quoted price is no longer valid), the price current at the date a binding Contract comes into existence in accordance with Clause 3.3.

5.3 Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such Products and/or Services not yet delivered or executed, to reflect any increase in the cost to Supplier which is due to:

(a) market conditions or any factor beyond the control of Supplier (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture);

(b) any change in delivery dates, quantities or specifications for the Products and/or Services which is requested by the Customer; or

(c) any delay caused by any instructions of the Customer or failure of the Customer to give Supplier adequate information or instructions.

6. PAYMENT

6.1 Subject to any special terms agreed in writing between the Customer and Supplier, Supplier may invoice the Customer for the price of the Contract(s) at the point that:

(a) Products are delivered where delivery is direct to the Customer from Supplier’s third party supplier;

(b) Supplier despatches (where despatch includes collection by Customer) Products to the Customer where Products are being dispatched directly;

(c) the Services have been performed in accordance with the Contract.

6.2 Payment shall be made in advance of delivery and upon receipt of a proforma invoice unless credit terms are agreed by Supplier on acceptance of a credit application form, in which instance the terms of payment shall be in accordance with the agreed credit terms.

6.3 Time for payment of the price shall be of the essence of the Contract.

6.4 If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Products and/or Services then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to Supplier, Supplier shall be entitled to:

(a) terminate the Contract or suspend any further deliveries of Products and/or Services (whether ordered under the same contract or not) to the Customer;

(b) appropriate any payment made by the Customer to such of the Products and/or Services (or any other overdue invoice on the Customer’s account) as it thinks fit (despite any purported appropriation by the Customer);

(c) exercise its statutory right to claim interest and compensation for debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998;

(d) suspend all further manufacture, delivery, installation or warranty service until payment has been made in full;

(e) make a storage charge for any undelivered Products at its current rates from time to time;

(f) stop any Products in transit; and

(g) a general lien on all Products and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to Supplier. Supplier shall be entitled, on the expiry of seven (7) Business Days' notice in writing, to dispose of such Products or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.

6.5 All sums payable to Supplier under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This Clause 6.5 is without prejudice to any right to claim for interest under the law, or any right under the Contract.

6.6 Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to Supplier against any liability of Supplier to the Customer.

6.7 Repeated failure by the Customer to comply with Supplier’s payment terms will result in permanent withdrawal of credit facilities.

7. DELIVERY OF PRODUCTS AND ACCEPTANCE

7.1 Supplier shall use its reasonable endeavours to deliver the Products on the date or dates as may be specified to the Customer, but any such date is approximate only. Time is not of the essence as to the delivery of the Products and Supplier is not in any circumstances liable for any delay in delivery, however caused.

7.2 The Products may be delivered by Supplier in advance of the Quoted delivery date on giving reasonable notice to the Customer.

7.3 Delivery shall be made during normal business hours (excluding bank or public holidays). Supplier may levy additional charges for any deliveries made outside such hours at the Customer's request.

7.4 The Customer shall be responsible (at the Customer's cost) for preparing the delivery location for the delivery of the Products and for the provision of all necessary access and facilities reasonably required to deliver and install the Products. If Supplier is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, Supplier may levy additional charges to recover its loss arising from this event.

7.5 The Customer shall be deemed to have accepted the Products when the Customer has had three (3) Business Days to inspect it after delivery and has not exercised in writing its right of rejection in accordance with Clause 7.6.

7.6 Supplier shall be responsible for any damage, shortage, delivery of incorrect Products or loss in transit, provided that the Customer notifies it to Supplier (or its carrier, if applicable) within three (3) Business Days of delivery or the proposed delivery date of the Products and that the Products have been handled in accordance with Supplier's stipulations and retained in their original packaging. Any remedy under this Clause 7.6 shall be limited, at the option of Supplier, to the replacement or repair of any Products which is proven to Supplier's satisfaction to have been lost or damaged in transit, or delivered incorrectly.

7.7 Supplier shall not accept any liability for the supply of incorrect Products (whether by type, quality or quantity) or damaged Products where the Customer or the Customer’s agent has collected the Products from Supplier. Any customer or agent collecting Products shall exercise their right to inspect the Products before removal of the Products from Supplier’s premises. Removal of the Products from Supplier’s premises shall be deemed the Customer’s acceptance of the Products.

8. SUPPLY OF SERVICES

8.1 Supplier shall supply the Services to the Customer in accordance with the Contract in all material respects.

8.2 Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

8.3 Supplier reserves the right to amend the specification of the Services 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 Supplier shall notify the Customer in any such event.

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

9. CUSTOMER OBLIGATIONS FOR THE SUPPLY OF SERVICES

9.1 The Customer shall:

(a) co-operate with Supplier in all matters relating to the Services;

(b) provide Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Supplier to provide the Services;

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

(d) prepare the Customer’s premises for the supply of the Services;

(e) obtain all necessary consents that are within the control of the Customer to obtain, including consents for any necessary alterations to buildings and power, and put in place formal arrangements for any minor works that may need to be completed in a timely manner at any Customer premises in order to facilitate the Services;

(f) defined health, safety, security access and/or any PPE requirements and notify Supplier within a reasonable timeframe prior to performance of the Services;

(g) unless otherwise agreed be responsible for the installation of the Products;

(h) provide a suitable environment for the Products in accordance with the manufacturer’s specification;

(i) provide competent operators for the Products and any relevant Customer equipment; and

(j) be responsible for ensuring that the Customer’s existing hardware and software is properly installed and is sufficient and suitable for its purpose and that any adjustments which may be required are carried out expeditiously.

10. RISK AND PROPERTY

10.1 The Products shall be at the risk of Supplier until collection of the Products by the Customer, or delivery to the Customer at the place of delivery specified in the Contract or as otherwise agreed in writing. Supplier shall off-load the Products at the Customer's risk.

10.2 Ownership of the Products shall pass to the Customer on the later of completion of delivery (including without limitation off-loading), or when Supplier has received in full in cleared funds all sums due to it in respect of:

(a) the Products; and

(b) any related Services.

10.3 Until ownership of the Products has passed to the Customer under Clause 10.2, the Customer shall:

(a) hold the Products on a fiduciary basis as Supplier's bailee;

(b) store the Products (at no cost to Supplier) in satisfactory conditions and separately from all the Customer's other equipment or that of a third party, so that it remains readily identifiable as Supplier's property;

(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and

(d) keep the Products insured on Supplier's behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of Supplier, ensure that Supplier's interest in the Products is noted on the policy, and hold the proceeds of such insurance on trust for Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

10.4 The Customer's right to possession of the Products before ownership has passed to it shall terminate immediately if any of the circumstances set out in Clause 18 arise, or if the Customer encumbers or in any way charges the Products, or if the Customer fails to make any payment to Supplier on the due date.

10.5 Until ownership of the Products is transferred to the Customer in accordance with Clause 10.2, the Customer grants Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect the Products, or where the Customer's right to possession has terminated, to remove the Products. All costs incurred by Supplier in repossessing the Products shall be borne by the Customer.

10.6 On termination of the Contract for any reason, Supplier's (but not the Customer's) rights in this Clause 10 shall remain in effect.

10.7 Supplier may appropriate payments by the Customer to such Products and/or Services as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any time.

11. SOFTWARE LICENCE

11.1 Any Software comprised in or supplied with the Products and/or Services is supplied under licence from the Software owner and no rights of ownership are transferred to the Customer. The Customer must comply with the terms of the Software licence and indemnify Supplier against the consequences of any breach.

11.2 The Customer acknowledges that the Software and all accompanying operating documentation and manuals are confidential and subject to the terms of Clause 17.

12. EXPORT TERMS AND COMPLIANCE WITH LEGISLATION

12.1 Where the Products are supplied for export from the United Kingdom, the provisions of this Clause 12 shall (subject to any contrary terms agreed in writing between the Customer and Supplier) override any other provision of these Terms.

12.2 The Customer shall be responsible for complying with any legislation governing:

(a) the importation of the Products into the country of destination; and

(b) the export and re-export of the Products, and shall be responsible for the payment of any duties on it.

12.3 Unless otherwise agreed in writing between the Customer and Supplier, the Products shall be delivered free on board the air or sea port of shipment and Supplier shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

12.4 At Supplier’s option, Supplier reserves the right to require payment of all amounts due to Supplier to be made by irrevocable letter of credit opened by the Customer in favour of Supplier and confirmed by a bank in England acceptable to Supplier, or, a bill of exchange drawn on the Customer and as agreed between the parties.

12.5 The Customer shall pay the price for the Products in the same currency as the applicable invoice.

13. WARRANTY

13.1 The Customer agrees and acknowledges that Supplier is not the manufacturer of the Products. Accordingly, all Products are sold subject to the express warranty terms, if any, specified by the original manufacturer of the Products (“Manufacturer’s Warranty”). Any Software supplied to the Customer pursuant to a Contract is supplied subject to the provisions of the manufacturer’s licensing terms. Manufacturer’s Warranties are offered from the manufacturer on a pass-through basis to the Customer or directly by the manufacturer to the Customer, and it is the responsibility of the Customer to be conversant with the terms of the Manufacturer’s Warranty and that it meets the Customer’s requirements.

13.2 Supplier may provide support or maintenance services with respect to the Products and such services shall be governed by separate terms agreed between Supplier and the Customer.

13.3 In the event that Products supplied to the Customer are not covered by a separate support and maintenance agreement from Supplier and prove to be defective in quality or condition within the Manufacturer’s Warranty period (“Claim”), then the Customer shall check whether, as a matter of manufacturer policy, the Claim must be handled directly with the manufacturer or indirectly through Supplier. In the event the Claim must be handled by Supplier the Customer shall immediately notify Supplier who will advise the Customer of the process for returning such Products. It is the Customer’s responsibility to ensure that Products being returned to Supplier under a Claim are suitably insured in the event of loss or damage. Any Products returned outside of the advised process will be refused or returned.

13.4 The Customer agrees that Supplier’s sole liability to the Customer regarding any Claim is limited to the administration of such Claim with the manufacturer and is expressly contingent upon Supplier’s ability to obtain a refund, credit or new replacement Products from the manufacturer. Supplier has no obligation to accept a return of Products that fail to comply with a manufacturer’s policy on Products returns.

13.5 Supplier accepts no liability (and offers no warranty) for direct, or indirect damage to any Products it has sold to the Customer or the Customer’s own property, where installation of the Products has been performed by any person or agency not expressly appointed to do so by Supplier.

13.6 It is the Customer’s responsibility to contact Supplier upon receipt of visibly faulty Products, or Products that are otherwise apparently damaged, in accordance with Clause 7.6 and before the Products are installed into other equipment. Failure to do so may automatically void any Manufacturer’s Warranty.

13.7 The Services will have a warranty of ten (10) Business Days from the date of completion of the Services. Supplier’s sole liability (and the Customer’s sole remedy against Supplier) in respect of any defective Services for which Supplier is responsible under the warranty shall be the re-performance of the Services at Supplier’s cost. (If any alleged defect shall be attributable to a defect in the Products the provisions of Clause 13.1 through to 13.6 shall apply.)

13.8 It is the Customer’s responsibility to retain all original packing until the Products are fully tested and functional. In the event the Products are returned, they must be returned in their original packing material as far as is reasonably possible. This condition may be waived where re-use of the original packing would not provide adequate protection for the Products in which instance suitable alternative packing shall be used. Where the Products consist of electronic or computer components, materials or sub-assemblies that are susceptible to the effects of electric, magnetic, electromagnetic radiation or fields, or nuclear radiation, particle emission or static electricity, it is the Customer’s responsibility to ensure that the Products are handled, packed and labelled in accordance with accepted industrial procedures for doing so. Supplier accepts no responsibility for damage to Products which are incorrectly handled, packed or labelled by the Customer, its agents, employees or any other person.

14. REMEDIES

14.1 Supplier shall not in any circumstances be liable for any non-delivery of Products (even if caused by Supplier's negligence) unless the Customer notifies Supplier in writing of the failure to deliver within three (3) Business Days after the scheduled delivery date.

14.2 Any liability of Supplier for non-delivery of the Products shall in all circumstances be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Products.

14.3 If Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under Clause 19), the Customer shall in all circumstances be liable to pay to Supplier all reasonable costs, charges or losses sustained by it as a result, subject to Supplier notifying the Customer in writing of any such claim it might have against the Customer in this respect.

15. LIMITATION OF LIABILITY

15.1 The following provisions set out the entire financial liability of Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of the Contract howsoever arising; and

(b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with the Contract.

15.2 All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.

15.3 Nothing in these conditions excludes or limits the liability of Supplier for:

(a) death or personal injury caused by Supplier's negligence; or

(b) fraud or fraudulent misrepresentation.

15.4 Subject to Clause 15.2 and Clause 15.3:

(a) Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:

(i) loss of profits; or

(ii) loss of business; or

(iii) depletion of goodwill or similar losses; or

(iv) loss of anticipated savings; or

(v) loss of goods; or

(vi) loss of contract; or

(vii) loss of use; or

(viii) loss or corruption of data or information; or

(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

(b) Supplier's total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with direct physical damage to tangible property of the Customer caused by a default by Supplier shall be limited to the lesser of 125% of the price payable for the Contract under Clause 5 or £500,000.

(c) Subject to Clause 15.4 (b) Supplier's total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price payable for the Contract under Clause 5.

16. INTELLECTUAL PROPERTY RIGHTS

16.1 If Supplier manufactures the Products, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified Supplier against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by Supplier in connection with, or paid or agreed to be paid by Supplier in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from Supplier's use of the Customer's specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of Supplier.

16.2 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Products and/or Services are and shall remain the sole property of Supplier or (as the case may be) third party rights, owner.

16.3 In relation to the Software:

(a) the Customer acknowledges that it is buying only the media on which the Software is recorded and the accompanying user manuals;

(b) nothing contained in these Terms shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and

(c) the Customer shall be subject to the rights and restrictions imposed by the owner of the Intellectual Property Rights in the Software and user manuals, and shall comply with all licence contracts, terms of use and registration requirements relating to them.

17. CONFIDENTIALITY AND SUPPLIER'S PROPERTY

17.1 The Customer 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 Customer by Supplier or its agents, and any other confidential information concerning Supplier's business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer's obligations to Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.

17.2 All materials, equipment and tools, drawings, specifications and data supplied by Supplier to the Customer shall at all times be and remain the exclusive property of Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to Supplier, and shall not be disposed of or used other than in accordance with Supplier's written instructions or authorisation.

17.3 This Clause 17 shall survive termination of the Contract, however arising.

18. TERMINATION

18.1 Without prejudice to any other right or remedy available to Supplier, Supplier may terminate the Contract or suspend any further Services or deliveries under the Contract without liability to the Customer and, if the Products and/or Services have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary if:

(a) the ability of the Customer to accept delivery of the Products is delayed, hindered or prevented by circumstances beyond the Customer's reasonable control;

(b) 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(c) 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;

(d) 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;

(e) 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;

(f) the holder of a qualifying floating charge over the assets of Customer has become entitled to appoint or has appointed an administrative receiver;

(g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Customer;

(h) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer's assets and such attachment or process is not discharged within ten (10) Business Days;

(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 18.1(b) to Clause 18.1(h) (inclusive);

(j) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(k) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).

18.2 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.

18.3 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.

19. FORCE MAJEURE

Supplier reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Products and/or Services ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”).

20. WAIVER

No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21. RIGHTS AND REMEDIES

The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.

22. SEVERANCE

22.1 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.

22.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

23. ENTIRE AGREEMENT

23.1 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.

23.2 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.

23.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

24. ASSIGNMENT

24.1 The Customer shall not, without the prior written consent of Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

24.2 Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

25. THIRD PARTY RIGHTS

No one other than a party to the Contract shall have any right to enforce any of its terms.

26. NOTICES

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

(a) delivered by hand or by pre-paid first-class post or other next Business Day delivery service to Supplier at Finance Directors Office, Unit 7 The Pavilions, Ruscombe Business Park, Twyford, Berkshire, RG10 9NN; or

(b) delivered by hand or by pre-paid first-class post or other next Business Day delivery service to the Customer at its registered office (if a company) or its principal place of business (in any other case).

26.2 Any notice shall be deemed to have been received:

(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

26.3 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.

27. GOVERNING LAW

The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the law of England and Wales.

28. JURISDICTION

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

29. MISCELLANEOUS

Supplier may revise these Terms from time to time by changing them on Supplier’s website. By continuing to purchase Products and/or Services you accept these Terms and agree to be bound by them. It is the Customer’s responsibility to check the Terms each time the Customer places a Purchase Order for Products and/or Services. These Terms were last updated on 6 November 2019.

 

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