1.1 The following definitions and rules of interpretation apply in these Conditions:
Business Day: a day other than a Saturday. Sunday or public holiday in England, when banks in London are open for business
Company: Creative8 Limited (company number 06759201) whose registered office is at Unit 25 North Luton Industrial Estate, Sedgwick, Luton LU4 9DT
Conditions: these terms and conditions as amended from time to time in accordance with Clause 2.7
Contract: any contract between the Company and the Customer for the carrying out of Contract Work and/or the supply of Goods in accordance with these Conditions and the agreed Quotation
Contract Price: has the meaning given in Clause 3.1
Contract Work: any or all of the work and/or services which the Company agrees to perform under a Contract
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010
Customer: the person, firm or corporate body who agrees to purchase Contract Work and/or Goods from the Company as set out in the Contract
Customer Default: has the meaning set out in Clause 2.12
Data Protection Legislation: means (a) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; and (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data
Delivery Location: such location as may be set out in the Contract or agreed between the parties in writing prior to delivery
EU GDPR: the General Data Protection Regulation ((EU) 2016/679)
Event Date: the date of a scheduled event at which the Contract is to be performed as set out in the Contract or as agreed in writing between the parties
Force Majeure Event: has the meaning given in Clause 10.1
Goods all goods of whatsoever description including but not limited to materials, plant, equipment, machinery and fittings as set out in the Quotation
Insolvency Event: has the meaning given in Clause 11.1
Order: the Customer’s order for Contract Work and/or Goods as set out in the Customer’s written acceptance of the Quotation
Order Confirmation: has the meaning given in Clause 2.5
Quotation: a cost quotation given by the Company to the Customer in respect of Contract Work and/or the supply of Goods and agreed between the parties in accordance with Clause 2
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018
1.2 Any reference in these Conditions to any statute or provision of a statute shall be construed as reference to that provision as amended, re-enacted or extended at the relevant time and shall include all subordinate legislation made from time to time under that legislation.
1.3 The headings in these Conditions are for convenience only and shall not affect the interpretation of a Contract
1.4 A reference to writing or written includes email but not fax
1.5 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
1.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)
1.7 In the event of any conflict between any provision of the agreed Quotation and these Conditions, the agreed Quotation shall prevail.
2.1 The Customer may submit a written request to the Company to prepare and provide a Quotation and shall provide the Company with details of the Customer’s requirements in relation to such Quotation. The Customer is to provide the Company with as much information as the Company reasonably requests in order to prepare a Quotation.
2.2 Following receipt of the information requested from the Customer, the Company shall, as soon as reasonably practicable, either:
2.2.1 inform the Customer that it declines to provide the requested Quotation; or
2.2.2 provide the Customer with a draft Quotation
2.3 Where the Company provides the Customer with a Quotation in accordance with Clause 2.2.2:
2.3.1 the parties shall discuss and agree the terms of the Quotation
2.3.2 the Company’s Quotation is only valid for the period started therein or, if none is stated, within one calendar month of its date
2.4 Once the parties have agreed the terms of the Quotation, the Customer may place an Order with the Company by signing and returning the Quotation to the Company. The Order constitutes an offer by the Customer to procure Contract Works and/or Goods in accordance with these Conditions and the agreed Quotation
2.5 The Order shall only be deemed to be accepted once the Company issues written acceptance of the Order (Order Confirmation), at which point and on which date a Contract shall come into existence
2.6 These Conditions shall apply to every Quotation and Contract to the exclusion of any other terms and conditions that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.7 No variation of, or addition to, these Conditions shall be effective unless in writing and signed by the parties (or their authorised representatives)
2.8 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. Save to the extent fraudulently made, any advice, statement, representation, assurance, warranty or recommendation given by the Company its employees or agents is not relied on by the Customer and it shall have no remedies in respect of those (whether made innocently or negligently) except as 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
2.9 Any typographical or clerical error or omission in the Contract, sales literature, price list, acceptance, invoice or other such document issued by the Company shall be subject to correction without any liability on the part of the Company
2.10 All specification, description, drawings, designs, measures, advertising or other information provided by the Company in relation to the Contract Work and/or Goods or contained in the Company’s website or brochures at the time the Contract is made are approximate and, howsoever provided, they shall not form part of the Contract or have contractual force
2.11 The Customer shall be responsible to the Company for:
2.11.1 ensuring the accuracy and completeness of the terms of any Order or other information or materials (including any applicable specifications) submitted by it or on its behalf and for giving the Company any information which it may reasonably require relating to the Contract within a sufficient time to enable the Company to perform the Contract in respect thereof in accordance with its terms
2.11.2 obtaining and maintaining all necessary licenses, consents and other permissions which may be required for the performance of the Contract
2.11.3 ensuring that every building, path, private road, open space or other property to be used in connection with the performance of the Contract is safe and suitable for the intended use and without limitation of foregoing, is adequately serviced with all required public utilities
2.11.4 co-operating with the Company in all matters relating to the Contract, Contract Works and/or Goods
2.11.5 providing the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company
2.11.6 keeping all materials, equipment, documents and other property belonging to the Company and/or licensed or hired by a third party to the Company (Company Materials) at the Delivery Location in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and
2.11.7 complying with any additional obligations set out in the Contract
2.12 If the Company’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):
2.12.1 without limiting or affecting any other right or remedy available to it, the Company shall have the right to suspend performance of the Contract Works and/or supply of the Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Company’s performance of any of its obligations;
2.12.2 the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this Clause 2.12; and
2.12.3 the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
2.13 The Company reserves the right to make changes to the Contract which are required to conform with any applicable statutory or regulatory requirements, or if the amendment will not materially affect the nature and quality of the Contract Work and/or Goods, and the Company shall notify the Customer in any such event
2.14 Subject to the provisions of Clause 9.5, the Customer may not cancel a Contract.
2.15 The Company shall have and retain the property, copyright and all other intellectual property rights in or arising out of or in connection with the Contract Work and/or supply of the Goods and they shall not be copied in whole or in part or submitted to or made use of by any other party in any way whatsoever unless the Company provides its prior written consent
2.16 The Customer shall have and retain the property, copyright and all other intellectual property rights in drawings, plans, models, and specifications prepared exclusively by the Customer for the purposes of the Contract Works and/or supply of the Goods
2.17 The Customer grants to the Company a fully paid-up, non-exclusive, royalty-free licence to copy and modify any materials provided by the Customer to the Company for the term of the Contract for the purpose of performing the Contract
2.18 The Customer shall indemnify the Company against all liabilities, losses, damages, costs and expenses (including but not limited to 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) awarded against, suffered or incurred by the Company in connection with or paid or agreed to be paid by the Company in connection with or arising out of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Company’s use of any material supplied by the Customer. Any material supplied by the Customer is accepted by the Company on the specific understanding that any consent, copyright release or license to copy and reproduce has been received by the Customer
2.19 Where the Customer is to supply goods or materials (Customers Property) to the Company in connection with the Contract, risk in Customers Property will remain with the Customer. The Company will not be liable to the Customer for loss or any damage to the Customers Property unless resulting from the negligence of the Company
2.20 If any part of the Contract is to be performed elsewhere than on the Company’s premises the Customer shall be responsible to the Company for insuring or procuring the insurance of such place of performance and shall indemnify the Company against any claim made against the Company for damage to such place of performance
3.1 The Company reserves the right by giving notice to the Customer at any time before completion of the Contract Work and/or the supply of the Goods to increase the price as set out in the Contract (the Contract Price) in the following circumstances:
3.1.1 where additional work or a change to the Contract is performed at the Customer’s request;
3.1.2 to reflect any increase in the cost of the Contract to the Company which is due to any factor beyond the Company’s control (such as, without limitation, any foreign exchange fluctuations, currency regulation, alteration of duties, increase in third party costs, the cost of labour, materials, transport, taxes, or other costs of performance); or
3.1.3 any failure of the Customer to give the Company adequate or accurate information or instructions
3.2 Prices stated in the Quotation and Contract are exclusive of VAT and, where applicable, any additional or substitute taxes, levies, imports, duties, fees or charges whatsoever payable, all of which shall be paid by the Customer. Prices stated are also exclusive of all packaging, insurance, carriage and delivery charges unless the Contract provides otherwise
3.3 The Contract Price excludes the following, which shall be payable by the Customer monthly in arrears, following submission of an appropriate invoice:
3.3.1 the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Company engages in connection with the Contract Works and/or Goods; and
3.3.2 the cost to the Company of any materials or services procured by the Company from third parties for the provision of the Contract Works and/or Goods as such items and their cost are notified to the Customer in advance from time to time
4.1 Unless otherwise set out in the Contract, the Customer shall pay:
4.1.1 60% of the Contract Price at the time of the Company’s receipt of the Customer’s signed Quotation in accordance with Clause 2.4, and upon receipt of the same the Company shall forward its receipted invoice for this amount;
4.1.2 30% of the Contract Price within 14 days of the presentation by the Company of its invoice presented at any time prior to completion of the Contract Work and/or delivery of the Goods PROVIDED THAT if completion of the Contract Work and/or delivery of the Goods occurs within 30 days of the date of invoice the invoice shall become immediately payable; and
4.1.3 the remaining 10% of the Contract Price payable within 30 days of the date of final invoice (together with any extra sums due under Clause 3.1 above). The final invoice shall be presented on completion of Contract Work and/or delivery of the Goods (as the case may be) as notified by the Company or the Event Date if earlier
4.2 Payment shall be in full and cleared funds to a bank account nominated in writing by the Company
4.3 Time for payment shall be of the essence. Receipts for payment will be issued only on request
4.4 If the Customer fails to make any payment on the due date of any instalment of the Contract Price or of any other sums due from the Customer to the Company on any account then without prejudice to any other right or remedy available to the Company, the Company shall be entitled at its option at any time thereafter to:
4.4.1 Subject to notifying the Customer that payment is outstanding and giving the Customer 14 days to make such payment, terminate the relevant Contract with immediate effect ;
4.4.2 suspend further performance of the Contract Work and/or delivery of Goods;
4.4.3 require the immediate return (at the cost of the Customer) of any Goods sold or hired pursuant to that Contract to the Customer; and/or
4.4.4 require immediate full payment without deduction of the total Contract Price or such part as remains outstanding together with interest (both before and after judgment) on such sum at the rate of 4% per annum above Santander UK Plc base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) calculated from the date that such sum is payable pursuant to Clause 4.1or from the date of request pursuant to this Clause 4.4.3 (whichever is the earlier date)
4.5 Notwithstanding the provisions of Clause 4.1, if the total sum payable by the Customer pursuant to a Contract is £5,000 or less, then such sum shall be invoiced in full on the Company’s receipt of the Customer’s signed Quotation in accordance with Clause 2.4 and the provisions of Clause 4.1 shall not apply
4.6 All amounts due to the Company under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding other than deduction or withholding of tax as required by law
5.1 Where the Contract includes the supply of Goods (whether on hire or by way of sale), delivery of the Goods shall be completed by the Company:
5.1.1 Where the Contract provides for the supply of Goods and not their installation, at the time when the Company notifies the Customer that the Goods are ready for collection or, if a Delivery Location has been agreed, the Company makes the Goods available at the Delivery Location and notifies the Customer accordingly; or
5.1.2 where the Contract includes the installation of the Goods, on completion of such installation (completion to be determined in the reasonable opinion of the Company) If required by the Company, an authorised representative of the Customer shall sign a delivery confirmation form confirming delivery
5.2 Where the Contract includes performance of Contract Work, performance shall be completed when, in the Company’s reasonable opinion, the Contract Work has been performed in accordance with the Contract in all material aspects
5.3 Any dates quoted for performance of the Contract Work and/or delivery of the Goods are approximate only and time for delivery shall not be of the essence
5.4 The Contract Work may be performed and/or Goods may be delivered by instalments. Each delivery or performance shall constitute a separate Contract and failure by the Company to deliver or perform any one or more of the instalments in accordance with the Contract or any claim by the Customer in respect of any one or more of the instalments shall not entitle the Customer to treat the Contract as a whole as repudiated or to cancel any other instalment
5.5 The Company shall only be liable to the Customer in respect of loss/non-delivery or damage of Goods during transit if the Customer:
5.5.1 in respect of loss/non-delivery of the Goods, gives written notice of such loss/non-delivery to the Company within one (1) Business Day of the Company’s failure to deliver the Goods on the scheduled date for delivery
5.5.2 in respect of damage to the Goods, gives 3 days of the delivery of Goods; and
5.5.3 in either case, where the Goods are transported by an independent freight carrier, complies in all respects with the freight carrier’s conditions of carriage for notifying claims for loss or damage in transit (provided that this condition does not apply to Goods that are also installed for the Customer by the Company)
5.6 If the Company 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 Contract Price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, a Customer Default or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.7 If the Customer fails to take possession of the Goods within three Business Days of the Company notifying the Customer that the Goods are ready then the Company shall store the Goods until the Customer takes possession, and charge the Customer for all related costs and expenses (including insurance)
5.8 If ten Business Days after the day on which the Company notified the Customer that the Goods were ready the Customer has not taken possession of them, the Company 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.
6.1 Risk of damage to or loss of Goods supplied by way of sale or hire shall pass to the Customer once delivered in accordance with Clause 5.1.
6.2 Title in Goods supplied by way of sale under a Contract shall not pass until payment has been made by the Customer of all sums due under the Contract in accordance with Clause 4.1
6.3 Until title in the Goods passes, the Customer shall:
6.3.1 hold them as fiduciary agent and Bailee for the Company,
6.3.2 store them separately from all other property of the Customer or any third party,
6.3.3 Keep them marked so as to be clearly identifiable as belonging to the Company,
6.3.4 keep them insured against all usual risks in their full Contract value from the date of delivery; and
6.3.5 if an Insolvency Event occurs, the Customer shall notify the Company immediately, place the Goods at the disposal of the Company and the Company shall be entitled to enter upon any premises of the Customer or any other premises were such Goods are kept for the purpose or removing them. The Customer shall procure for the Company a licence to enter the premises of such third party for such purposes and indemnify the Company in respect of the costs incurred in such repossession
6.4 Until such time as title in the Goods supplied by way of sale passes to the Customer or until such time as payment in respect of Goods supplied by way of hire is received in full in accordance with Clause 4.1, the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so, to enter upon any premises of the Customer or any third party where the Goods are stored or being used and repossess the Goods. The Customer shall procure for the Company a license to enter the premises of such third party for such purposes and indemnify the Company’s costs incurred in such repossession
7.1 The Company warrants that the Contract Work will be performed with reasonable care and skill, and, on delivery, the Goods will be of satisfactory quality and fit for the purpose held out by the Customer
7.2 Save in respect of Goods or materials provided for exhibitions (which are dealt with in accordance with Clause 7.3), where the Customer identifies any material defect in the Goods, the Company shall (in its sole discretion) either replace, remedy the material defect or refund to the Customer a reasonable proportion of the Contract Price, provided that:
7.2.1 the Customer gives notice as soon as reasonably possible and in any event within seven days of a material defect being discovered and provided always that (a) in the case of hired Goods, such notice must be given within the period of hire, and (b) in the case of Goods supplied by way of sale, such notice must be given within 12 months of the date of delivery; and
7.2.2 the Company, after being permitted to make a full examination of the alleged defect, is satisfied that a defect exists; and
7.2.3 the defect was not caused in whole or part by any matter, action or occurrence outside the Company’s control; and
7.2.4 the defect is directly attributable to defective material, workmanship or design; and
7.2.5 the Customer (if asked to do so by the Company) returns the Goods to the Company’s place of business at the Company’s cost
7.3 In respect of Goods or materials provided for exhibitions, where the Customer identifies any material defect in such Goods, the Company shall (in its sole discretion) either replace, remedy the material defect or refund to the Customer a reasonable proportion of the Contract Price, provided that:
7.3.1 the Customer gives notice upon the Company’s instalment of the Goods; and
7.3.2 the Company, after being permitted to make a full examination of the alleged defect, is satisfied that a defect exists; and
7.3.3 the defect was not caused in whole or part by any matter, action or occurrence outside the Company’s control; and
7.3.4 the defect is directly attributable to defective material, workmanship or design; and
7.3.5 the Customer (if asked to do so by the Company) returns the Goods to the Company’s place of business at the Company’s cost
7.4 Where the Customer considers that Contract Work has not been provided with reasonable care and skill and/or the terms of the Contract, the Customer must provide written notice to the Company within fourteen (14) days of the completion of the Contract Work, and the Company’s reasonable opinion (acting in good faith towards the Customer) as to whether the Contract Work has not been provided with reasonable care and skill shall be final. If the Company determines that it has failed to execute the Contract Work in accordance with reasonable care and skill and/or the terms of the Contract, the Company may, at its option, perform again such part of the Contract Work or refund to the Customer a reasonable proportion of the price of the Contract
7.5 The warranties set out in Clauses 7.1 to 7.4 above are given by the Company subject to Clause 2.11 and the following conditions:
7.5.1 the Company shall be under no liability in respect of any defect in the Contract Work or the Goods arising from any drawing, plan, model, information, design or specification supplied by or on behalf of the Customer;
7.5.2 the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal conditions, misuse, alteration or repair of the Contract Work or Goods without the Company’s approval;
7.5.3 The Company shall be under no liability in respect of the warranties if the total Contract Price for the Contract Work and Goods (if the Goods are being sold) has not been paid by the due date for payment pursuant to Clause 4.1
7.5.4 Where the defect is in relation to components which were not manufactured or produced by the Company, the Customer shall only be entitled to such warranty or other benefit that the Company received from the manufacturer
7.5.5 The Company shall not be liable for any defect where the Customer makes any further use of the Goods and/or Contract Work after giving notice in accordance with this Clause 7
7.6 The Company shall be under no liability in respect of the warranties for the failure of those parts of the Goods specified in the Contract as not benefitting from warranty protection
7.7 These Conditions shall apply to any repaired or replacement Goods and/or Contract Work supplied by the Company.
8.1 Save as expressly provided in the Contract, all warranties, conditions or other terms implied by statute or common law (including, but not limited to, sections 3 to 5 of the Supply of Goods and Services Act 1982 and sections 13 to 15 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law
8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
8.2.1 death or personal injury caused by negligence;
8.2.2 fraud or fraudulent misrepresentation; and
8.2.3 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
8.3 References to liability in this Clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, resolution or otherwise.
8.4 Subject to Clause 8.2, the Company shall not be liable for:
8.4.1 any indirect, special or consequential loss or damage
8.4.2 loss or damage to goodwill,
8.4.3 loss of profit, sales or business, agreements or contracts, anticipated savings, use or corruption of software, data or information, or revenue or otherwise whether sustained by the Customer or any other person
8.5 Subject to Clauses 8.2, 8.3 and 8.4 the total aggregate liability of the Company in respect of all other costs, expenses, losses or damages arising under or in connection with this Contract from any claim made by or against the Customer or by any other person, or other claims for compensation whatsoever which arise out of or in connection with the Contract, shall not exceed the Contract Price, except as expressly provided in these Conditions
8.6 The Customer shall indemnify the Company against all losses, claims, actions, costs, expenses (including court costs and reasonable legal fees) awarded against or incurred by the Company or other liabilities of the Company whatsoever in respect of:
8.6.1 any liability to any third party unless caused by the negligent act or omission of the Company in the manufacture and/or supply of Goods and/or performance of Contract Work; and
8.6.2 any breach of contract or negligent or wilful act or omission of the Customer in relation to the Contract.
8.7 These Conditions do not purport to exclude or restrict any liability where such exclusion or restriction is unlawful. Nothing in these Conditions shall affect the statutory rights of a consumer
8.8 This Clause 8 shall survive termination of the Contract
9.1 Unless specifically provided by the way of sale, all Goods used or supplied by the Company in connection with the Contract shall be deemed to be on hire to the Customer. The hired Goods shall at all times remain the property of the Company and the Customer shall have no right, title or interest in or to the Goods (save the right to possession and use of the Goods, subject to the terms of the Contract)
9.2 Risk in the hired Goods shall pass to the Customer on delivery and shall remain at the sole risk of the Customer until such time as the Goods are returned to the Company
9.3 The Customer shall indemnify the Company against the loss of and/or damage to hired Goods from the date of delivery howsoever caused and give the Company immediate notice in respect of the same
9.4 The Customer shall keep hired Goods in his possession and/or under his control at all times and shall not remove them from the place they are installed by the Company without the Company’s prior written consent
9.5 The Customer shall during the period of hire:
9.5.1 ensure that the hired Goods are kept and used in a suitable environment and used only for the purposes for which it is designed
9.5.2 maintain at its own expense the hired Goods in good and substantial repair in order to keep it in as good an operating condition as it was on the date of delivery (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
9.5.3 make no alteration to the hired Goods
9.5.4 keep the Company fully informed of all material matters relating to the hired Goods; and
9.5.5 not use the hired Goods for any unlawful purpose
9.6 If it so chooses the Company may at any time without notice retake possession of such hired Goods and the Company shall be entitled to enter the premises of the Customer or any other third party where the goods are installed or stored for such purposes. The Customer shall procure from such third party a license for the Company to enter upon such premises for this purpose
9.7 Subject to Clause 2.19, upon expiry of the period of deemed hire of the Goods, or upon the earlier termination of the relevant Contract, the Customer shall no longer be entitled to possession of the hired Goods and shall (unless otherwise agreed between the parties) immediately make the Goods available for de-installation and collection by the Company (at the Customer’s cost). If the Customer does not make the hired Goods available to the Company on the date of termination or expiry of the Contract:
9.7.1 the Customer shall pay to the Company by way of liquidated damages such sum calculated at the equivalent daily hire rate for such Goods by reference to the Contract Price in the relevant Contract
9.7.2 the Company may make arrangements for such Goods to be collected and stored or (at the Company’s sole discretion) disposed of, and the Customer shall indemnify the Company in respect of any costs, damages or losses suffered or incurred by the Company in respect thereof.
10.1 Neither party shall not be deemed to be in breach of the Contract nor liable by reason of any delay in performing, or any failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its or its suppliers’ reasonable control (Force Majeure Event)
10.2 Where a party is prevented or delayed in performing its obligations under the Contract due to a Force Majeure Event, 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
10.3 If the Force Majeure Event continues for four weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving written notice to the affected party
11.1 The Company shall be entitled immediately, and at any time thereafter, to terminate forthwith any Contract or any unfulfilled part thereof if: the Customer 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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 (Insolvency Event)
11.2 If Goods and/or Contract Work have been delivered or performed but not paid for in full, the Contract Price in respect of the Goods or Contract Works so delivered or performed shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
12.1 The rights and obligations under the Contract to which these Conditions relate shall not be assigned by either party without the other party’s prior written consent
12.2 The Company shall have the right to sub contract or delegate any of its duties, rights or obligations under the Contract
12.3 The Customer shall not subcontract or delegate any of its duties, rights and obligations under the Contract
13.1 For the purposes of this Clause 13, the terms controller, personal data and processing have the same meanings as set out in the Data Protection Legislation.
13.2 This Clause 13 sets out the framework for the processing of personal data under the Contract and the parties acknowledge that, for the purposes of the Data Protection Legislation, both parties shall be deemed to be controllers in respect of any personal data they process under the Contract.
13.3 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation.
13.4 Each party shall ensure that it has all necessary notices and consents and lawful bases in place to enable the lawful transfer of personal data to the other party and the lawful processing of such personal data by the other party for the performance by each party of its respective obligations under the Contract
14.1 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:
14.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so; or
14.1.2 the other party is the subject of an Insolvency Event
14.2 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
14.2.1 there is a change of Control of the Customer;
14.2.2 the Customer suspends, or threatens to suspend or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.2.3 the Customer’s financial position deteriorates to such an extent that in the Company’s reasonable opinion the Customer’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 Customer may terminate the Contract for convenience with immediate effect by giving written notice to the Customer, provided that the Customer shall pay the following termination fee to the Company:
14.3.1 where the Customer gives written notice to terminate the Contract more than or equal to three (3) months prior to the scheduled delivery of the Goods and/or performance of the Contract Work, 60% of the Contract Price; and
14.3.2 where the Customer gives written notice to terminate the Contract less than three (3) months prior to the scheduled delivery of the Goods and/or performance of the Contract Work, 100% of the Contract Price
14.4 Without affecting any other right or remedy available to it, the Company may suspend the supply of Contract Works and/or provision of Goods under the Contract if the Customer becomes, or the Company reasonably believes that the Customer is about to become, subject to an Insolvency Event
14.5 On termination or expiry of the Contract:
14.5.1 the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest, and, in respect of Contract Work and/or Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt; and
14.5.2 the Customer shall return all hired Goods, Company Materials and/or any Goods which have not been fully paid for. If the Customer fails to do so, then the Company may enter the Customer’s premises, or wherever those items are present, and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
14.5.3 Where the Contract includes the provision and/or removal of Goods (such as, by way of example, a stand) at an exhibition then upon the closing of the exhibition the Company shall (unless otherwise agreed between the parties in writing) make arrangements to (at the Customer’s cost) promptly collect and store (or dispose of) the Goods and in the event that the Customer fails to provide the Company with the necessary assistance, cooperation, access, licences and permissions in order for the Company to de-install and collect such Goods, then the Company may make arrangements for such stand to be collected and stored or (at the Company’s sole discretion) disposed of, and the Customer shall indemnify the Company in respect of any costs, damages or losses suffered or incurred by the Company in respect thereof.
14.6 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 for any breach of the Contract which existed at or before the date of termination or expiry
14.7 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.
15.1 No failure or delay by either party to exercise any right or remedy under the Contract or by law shall 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.
15.2 If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or part, it shall be deemed deleted but the validity of the other provisions and the remainder of the provision in question shall not be affected thereby
15.3 Each party:
15.3.1 undertakes that it shall not at any time during the Contract, and for a period of one year 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:
15.3.1.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information solely 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 15.3; and
15.3.1.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3.2 Each party shall not use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
15.4 The Contract and any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes and claims) shall be governed by and in accordance with the laws of England and Wales. 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, its subject matter or formation (including non-contractual disputes or claims)
15.5 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and delivered by hand, pre-paid first class post, recorded delivery service or email to that other party at its registered office, or principal place of business, or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any notice shall be deemed served:
15.5.1 if delivered by hand, at the time the notice was left at the proper address; or, and
15.5.2 if posted by pre-paid first-class post or recorded delivery service, at 9am on the second Business Day after posting
15.5.3 If sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt (being 9:00am to 5:00pm on a Business Day) when business hours resume
15.6 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract