The Customer's attention is particularly drawn to the provisions of clause 14 (Limitation of liability).
The following definitions and rules of interpretation apply in these Conditions:
1.1 “A Wrate Group” means the group of A Wrate companies comprising A Wrate Engineering Ltd (company number 12279054), A Wrate Machinery Limited (company number 12279446) and A Wrate Engineering (Southern) Ltd (company number 13380545).
1.2 "Business Day" a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
1.3 "Business Hours" the period from 8.00 am to 5.00 pm on Mondays, Tuesdays, Wednesdays and Thursdays which are Business Days, and the period from 8.00 am to 3.00 pm on Fridays which are Business Days.
1.4 "Commencement Date" has the meaning given in clause 2.4.
1.5 "Conditions" these terms and conditions as amended from time to time in accordance with clause 17.8.
1.6 "Contract" the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
1.7 "Customer" the person or firm who purchases the Goods and/or Services from the Supplier.
1.8 "Deliverables" the deliverables identified as such in the Order. Unless expressly stated to the contrary in the Order, Tooling is not a Deliverable.
1.9 "Delivery Location" has the meaning given in clause 4.2.
1.10 "Force Majeure Event" has the meaning given to it in clause 16.
1.11 "Goods" the goods (or any part of them) set out in the Order.
1.12 "Goods Specification" the specification for the Goods contained set out in the Order or otherwise confirmed in writing by the Supplier.
1.13 "Intellectual Property Rights" patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
1.14 "Order" the Supplier and Customer's agreement to the Supplier suppling Goods and/or Services (as applicable), which may comprise:
1.14.1 the Customer’s written or verbal acceptance of the Supplier’s quotation prior to its expiration; or
1.14.2 the Supplier confirming in writing its acceptance of the Customer’s order (being an order placed in person, by letter/email or by telephone).
1.15 "Services" the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Order.
1.16 "Service Specification" the description or specification for the Services set out in the Order or otherwise confirmed in writing by Supplier.
1.17 "Supplier" the A Wrate Group company identified in the Order.
1.18 "Supplier Materials" has the meaning given in clause 8.1.6.
1.19 “Tooling” means tooling, dies, drills, moulds, presses, vessels, tools and machinery, and related items.
1.20 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.21 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.22 A reference to writing or written includes email.
2 BASIS OF CONTRACT
2.1 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. For the avoidance of doubt, any terms endorsed on the Customer’s purchase orders shall have no effect unless explicitly accepted by the Supplier in writing.
2.2 Any quotation issued by the Supplier is valid for 30 days from date of issue. The Customer cannot accept the quotation after this time unless expressly permitted in writing by the Supplier.
2.3 The Customer is responsible for ensuring that the terms of the Order and all applicable Goods Specifications and Services Specifications are complete and accurate and meet the Customer’s requirements.
2.4 The Contract takes effect on the date of the Order (the “Commencement Date”). For the avoidance of doubt, an offer to order goods or services submitted by the Customer shall only result in a Contract once it is accepted in writing by the Supplier.
2.5 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 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 shall not form part of the Contract nor have any contractual force except to the extent they are expressly incorporated into the Goods Specification or Services Specification (as applicable).
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, 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 or threatened 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.
3.3 The Supplier reserves the right to amend the Goods Specification 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 that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, a list of the Goods being delivered and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 the delivery note clearly states any requirement for the Customer to keep any packaging materials. Where required, the Customer shall make such materials available for collection by the Supplier (at the Supplier’s expense) at such time(s) as the Supplier reasonably requests.
4.2 The Supplier shall:
4.2.1 deliver the Goods to the location set out in the Order or such other location as the parties may agree; or
4.2.2 make the Goods available for collection from its premises during Business Hours, (as applicable, the “Delivery Location”).
4.3 The Customer shall authorise its staff or representative to sign the Supplier’s delivery note to confirm completion of delivery of the Goods. Signature of the same shall be irrefutable evidence of the Supplier having discharged its delivery obligations in accordance with the Contract in respect of that delivery.
4.4 Delivery of the Goods shall be completed on the completion of unloading of the Goods or, in case of collection by the Customer, making the Goods available, at the Delivery Location.
4.5 Any dates for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Customer fails to take delivery of the Goods on (as applicable) first attempted delivery or within three Business Days of the Supplier notifying the Customer that the Goods are ready for collection, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that (as applicable) delivery had been attempted or the Goods were ready for collection; and
4.7.2 the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If ten Business Days after the day on which the Supplier notified the Customer that (as applicable) it had attempted delivery of the Goods or the Goods were ready for collection, the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.9 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.
4.10 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
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; and
5.1.2 be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier 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 of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business during Business Hours at the Customer's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out 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 regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or 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 requirements.
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 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 earlier of:
6.2.1 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, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer immediately before conclusion of the resale.
6.3 Subject to clause 10.6, if the parties have agreed that the Customer will own any Tooling then title in such Tooling transfers to the Customer once it has paid in full and in cleared funds or cash all amounts due under the relevant Contract.
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 all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 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.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
7.5 To the extent that the Services are to be performed in accordance with a Services Specification supplied by the Customer, 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 or threatened 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 Services Specification or the performance of the Services in accordance with it. This clause 7.5 shall survive termination of the Contract.
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 Goods Specification are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to the Services;
8.1.3 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;
8.1.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.5 comply with all applicable laws, including health and safety laws;
8.1.6 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; and
8.1.7 comply with any additional obligations as set out in the Service Specification and the Goods Specification (as applicable).
8.2 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”):
8.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services 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 Supplier's performance of any of its obligations;
8.2.2 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 8.2; and
8.2.3 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.
8.3 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including direct losses 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:
8.3.1 the Customer’s breach or negligent performance or non-performance of the Contract;
8.3.2 the enforcement of the Contract.
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 Order, the price set out in the Supplier's published price list as at the date of delivery; and
9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
9.2 Unless a fixed price or other pricing structure has been expressly agreed in the Order, the charges for Services shall be calculated on a time and materials basis as follows:
9.2.1 the charges shall be calculated in accordance with the Supplier's daily fee rates, as set out in its current price list at the date of the Contract; and
9.2.2 the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days other than a Friday and a six-hour day from 8.00 am to 3.00 pm on Fridays which are Business Days.
9.3 The Supplier reserves the right to:
9.3.1 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:
(a) 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);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c) 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 Unless otherwise specified in the Order, in respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services.
9.5 The Customer shall pay each invoice submitted by the Supplier:
9.5.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
9.5.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and 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 15, 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 9.7 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 AND TOOLING
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2 Without prejudice to the generality of clause 10.1, the Supplier specifically owns all Intellectual Property Rights in the processes utilised by the Supplier to produce the Goods or to perform the Services to the extent that such processes are not set out in the materials provided by the Customer with sufficient technical detail that a third party could replicate such processes without any further information. Such processes do not form part of the Deliverables unless expressly agreed in writing in the Order.
10.3 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables for its internal business purposes.
10.4 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.3 except to other companies within its corporate group.
10.5 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 supplying the Goods and/or Services (as applicable) to the Customer.
10.6 Unless the Supplier expressly agrees to the contrary in writing, all Tooling used in the performance of the Contract shall be owned by the Supplier and ownership shall not transfer pursuant to the Contract.
11 DATA PROTECTION
12.1 Each party undertakes that it shall not at any time during the Contract, and for a period of three years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, 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, contractors or subcontractors 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 the Contract. 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 12; 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 the Contract.
13 NON-SOLICITATION AND EMPLOYMENT
13.1 For the duration of the Restricted Period, neither party shall, without the prior written consent of the other, solicit or entice away from the other or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the other.
13.2 In this clause 13 the “Restricted Period” means the period commencing on the effective date of the Contract and ending 12 months after termination or expiry of the Contract, whereby:
13.2.1 a Contract for Services expires on completion of the Services;
13.2.2 a Contract for Goods expires on delivery of the Goods; and
13.2.3 a Contract for Goods and Services expires on the later of 13.2.1 and 13.2.2.
13.3 Any consent given by a party in accordance with clause 13.1 shall be subject to the other party paying a sum equivalent to 20% of the then-current annual remuneration of the employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the other party to that employee, consultant or subcontractor once engaged.
14 LIMITATION OF LIABILITY
14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
14.2.1 death or personal injury caused by negligence;
14.2.2 fraud or fraudulent misrepresentation; and
14.2.3 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 (title and quiet possession).
14.3 Nothing in the Contract shall limit any liability under the indemnities in clause 3.2 and clause 7.5.
14.4 Subject to clause 14.2, the Supplier's total liability to the Customer in respect of all breaches of duty arising under or in relation to the Contract shall not exceed the amount paid and payable by the Customer to the Supplier under the Contract.
14.5 The following types of loss are wholly excluded from the Contract:
14.5.1 loss of profits;
14.5.2 loss of sales or business;
14.5.3 loss of agreements or contracts;
14.5.4 loss of anticipated savings;
14.5.5 loss of use or corruption of software, data or information;
14.5.6 loss of or damage to goodwill; and
14.5.7 indirect or consequential loss.
14.6 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.
14.7 This clause 14 shall survive termination of the Contract.
15.1 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:
15.1.1 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 30 days after receipt of notice in writing to do so;
15.1.2 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), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
15.1.3 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
15.1.4 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
15.2 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.
15.3 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 15.1.2 to clause 15.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15.4 On termination of the Contract:
15.4.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
15.4.2 the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
15.4.3 if the Supplier is in possession of any Tooling belonging to the Customer then it shall make the same available for collection during Business Hours at the Customer’s request.
15.5 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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.
15.6 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
16 FORCE MAJEURE
16.1 A “Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation:
16.1.1 acts of God, flood, drought, earthquake or other natural disaster;
16.1.2 epidemic or pandemic;
16.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
16.1.4 nuclear, chemical or biological contamination or sonic boom;
16.1.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
16.1.6 collapse of buildings, fire, explosion or accident;
16.1.7 any labour or trade dispute, strikes, industrial action or lockouts;
16.1.8 non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
16.1.9 interruption or failure of utility service.
16.2 Provided it has complied with clause 16.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
16.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
16.4 The Affected Party shall:
16.4.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
16.4.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
16.5 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than eight weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving one week’s written notice to the Affected Party.
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.
17.2.1 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 working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the following address (or an address substituted in writing by the party to be served):
(i) for the Supplier - email@example.com; and
(ii) for the Customer - to any email address used to communicate with the Supplier in relation to the Contract.
17.2.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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
(c) 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.
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. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
17.4.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.4.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. 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.
17.6.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
17.7 Third party rights. 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, save that any company in the A Wrate Group may enforce the Supplier’s rights under the Contract.
17.8 Variation. 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). Only a director of the Supplier has authority to agree amendments to these terms.
17.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.10 Jurisdiction. 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.