The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
ADR Notice: has the meaning given in clause 17.9.
Affected Party: has the meaning given in clause 16.1.
BPWS: Blue Planet Washing Solutions Ltd registered in England and Wales with company number 13506006.
BPWS Premises: 15 GIDC, Cobham Way, West Sussex, RH10 9RX.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Cancellation Charges: has the meaning given in clause 7.3.
Cancellation Notice: has the meaning given in clause 7.1.
Charges: the charges payable by the Customer for the supply of the Services, including the Storage Costs, the Transportation Charges, the Wasted Business Time, any Cancellation Charges and/or Penalty Charges, all as detailed in the Proposal.
Conditions: these terms and conditions, as amended from time to time in accordance with clause 17.3.
Contract: the contract between the Customer and BPWS for the supply of Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the company, person or firm who purchases Services from BPWS.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to BPWS.
Dispute: has the meaning given in clause 17.9.
Dispute Notice: has the meaning given in clause 17.9.
Force Majeure Event: any circumstance not within a party’s reasonable control including, without limitation:
Intellectual Property Rights: patents, rights to inventions, copyright 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, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Items: the items identified in the Proposal.
Order: the Customer’s order for Services as set out in the Customer’s written acceptance of the Proposal.
Penalty Charge: the costs to be paid by the Customer to BPWS where BPWS is unable to deliver the Services due to a failure by the Customer to package the Items securely and/or load or off-load the items in a safe and secure manner, as such costs are set out in the Proposal.
Proposal: the description or specification of the Services provided in writing by BPWS to the Customer.
Replacement Cost: the cost to replace each Item, as set out in the Proposal.
Services: the services supplied by BPWS to the Customer, as set out in the Proposal.
Services Start Date: the day on which the BPWS is to start provision of the Services, as set out in the Proposal or agreed otherwise in writing between the parties prior to the Commencement Date.
Site: the Customer’s premises or other locations at which the Items are to be collected from and/or delivered to by BPWS and/or its subcontractors as part of the Services.
Storage Costs: the costs to be paid by the Customer to BPWS where BPWS stores any Items at the BPWS Premises for any reason, as such costs are set out in the Proposal.
Transportation Charges: the charges to be paid by the Customer to BPWS for the transportation of Items from and to the Site for any reason, as such costs are set out in the Proposal.
Wait Time: has the meaning given in clause 4.6.
Wasted Business Time: the time allocated by BPWS for its staff members to unpack, wash and re-pack the Items based on its standard hourly rate, as set out in the Proposal.
1.2 Interpretation:
(a) A reference to legislation or a legislative provision:
(i) is a reference to it as amended, extended or re-enacted from time to time; and
(ii) shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes email but not fax.
2.1 The Order constitutes an offer by the Customer to purchase the Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when BPWS issues written acceptance of the Order, at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by BPWS, and any descriptions or illustrations contained in BPWS’ catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract nor have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any Proposal given by BPWS shall not constitute an offer, and is only valid for a period of 14 days from its date of issue.
3.1 BPWS shall supply the Services to the Customer from the Services Start Date.
3.2 In supplying the Services, BPWS shall:
(a) perform the Services with reasonable care and skill;
(b) perform the Services in accordance with the Proposal in all material respects;
(c) ensure that all goods, materials, standards and techniques used in providing the Services are of satisfactory quality and are fit for purpose;
(d) count the number of Items at the point of wash and any such count shall be considered by the parties to be a true and accurate reflection of the number of Items washed by BPWS for the purpose of calculating the Charges;
(e) keep a record of any Items that are damaged or broken during washing and provide details of the same to the Customer;
(f) comply with all applicable laws, statutes, regulations and codes from time to time in force, provided that BPWS shall not be liable if, as a result of such compliance, it is in breach of any of its obligations under the Contract; and
(g) observe all reasonable health and safety rules and regulations and security requirements that apply at the Site and have been communicated to BPWS, provided that BPWS shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
3.3 BPWS shall use reasonable endeavours to meet any performance dates specified in the Proposal, but any such dates shall be estimates only and time for performance by BPWS shall not be of the essence for performance of the Services.
3.4 BPWS reserves the right to amend the Proposal if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and BPWS shall notify the Customer in such event.
4.1 Details of the responsibilities of the parties in connection with the packaging, collection, delivery and off-loading of the Items shall be specified in the Proposal. Health and safety is of paramount importance to BPWS and therefore, at the point of collection and/or delivery, BPWS shall carry-out a dynamic risk assessment to ensure that all appropriate health and safety requirements and any specific details set out in the Proposal have been met. If BPWS feels, in its absolute discretion, that there is a risk to either party and/or any specific requirements set out in the Proposal have not been met, it shall liaise with the appropriate on-site representative for the Customer in relation to the same and the provisions of clauses 4.5 and 4.6, as appropriate, shall apply.
4.2 Where the Proposal specifies that the Items shall be collected from and returned to the Site by BPWS:
(a) the parties shall agree in advance the date and time at which the Items shall be collected from and returned to the Site;
(b) risk in the Items shall pass to BPWS at the point of collection and, subject to clause 4.2(e), shall revert to the Customer at the point the delivery note is signed by (or on behalf of) the Customer on return of the Items to the Site by BPWS;
(c) BPWS shall be responsible for insuring the Items whilst in transit and the risk for such transit shall remain with BPWS;
(d) where the Proposal specifies that BPWS shall manage loading and off-loading of the Items at the Site, BPWS shall provide all appropriate equipment to carry-out the same and shall be responsible for insuring the Items whilst being loaded and off-loaded and the risk for such loading and off-loading shall remain with BPWS;
(e) where the Proposal specifies that the Customer shall manage loading and off-loading of the Items at the Site, the Customer shall:
(i) ensure that the equipment used to carry-out the loading and off-loading is available at the time agreed between the parties for delivery and is fit for purpose and all Customer personnel are sufficiently qualified to operate the same;
(ii) be responsible for insuring the Items whilst being loaded and off-loaded and the risk for such loading and off-loading shall be with the Customer; and
(iii) pay to BPWS (in accordance with clause 8.5) the costs required to repair or replace (at BPWS’ discretion, acting reasonably) any BPWS property that is damaged as a result of the Customer’s actions or inactions.
Where the equipment to be used to load and/or off-load the Items is unavailable at the time agreed between the parties and BPWS is required to wait longer than 30 minutes beyond this agreed time, BPWS shall be entitled to charge the Customer for such additional time spent at the Site at its standard hourly rate, as specified in the Proposal and the Customer shall pay the same in accordance with clause 8.5.
(f) the Customer shall ensure that BPWS and/or its agents or subcontractors have access to a suitable area at the Site for loading and off-loading the Items (as required) and that there will be sufficient space to load and off-load the Items in a safe manner.
4.3 Where the Proposal specifies that the Items shall be delivered to and collected from the BPWS Premises:
(a) the parties shall agree in advance the date and time at which the Items shall be delivered to and collected from the BPWS Premises;
(b) the Customer shall ensure that the Items are packed securely and in such a manner as to avoid any injury and/or health and safety hazard to BPWS’ employees when they receive the Items for processing;
(c) risk in the Items shall pass to BPWS at the point of delivery to the BPWS Premises and, subject to clause 4.3(f), shall revert to the Customer at the point the collection note is signed by (or on behalf of) the Customer on collection of the Items from the BPWS Premises;
(d) the Customer shall be responsible for insuring the Items whilst in transit and the risk for such transit shall remain with the Customer;
(e) where the Proposal specifies that BPWS shall manage loading and off-loading of the Items, BPWS shall provide all appropriate equipment to carry-out the same and shall be responsible for insuring the Items whilst being loaded and off-loaded and the risk for such loading and off-loading shall remain with BPWS;
(f) where the Proposal specifies that the Customer shall manage off-loading of the Items, the Customer shall:
(i) only off-load the Items to the area specified by BPWS;
(ii) ensure that the equipment used to carry-out the off-loading is fit for purpose and all Customer personnel are sufficiently qualified to operate the same;
(iii) be responsible for insuring the Items whilst being off-loaded and the risk for such off-loading shall be with the Customer; and
(iv) pay to BPWS (in accordance with clause 8.5) the costs required to repair or replace (at BPWS’ discretion, acting reasonably) any BPWS property that is damaged as a result of the Customer’s actions or inactions.
(g) BPWS will ensure that the Customer and/or its agents or subcontractors have access to a suitable area at the BPWS Premises for off-loading the Items and that there will be sufficient space to off-load the Items in a safe manner;
(h) the Customer shall ensure that its personnel comply with any and all instructions given by BPWS in connection with the loading and off-loading of the Items.
4.4 Where the Customer fails to comply with clause 4.3(b) and/or BPWS has any concerns with the method used by the Customer to off-load the Items, or they are started to be off-loaded in the wrong area (in contravention of clause 4.3(f), BPWS shall:
(a) be entitled, as appropriate, to either:
(i) refuse acceptance of the Items; or
(ii) request the Customer to stop off-loading the Items;
(b) not be liable to the Customer for any:
(i) damage to the Items and/or breakages of Items;
(ii) additional costs incurred by the Customer where BPWS refuses to accept the Items in accordance with clause 4.4(a)(i) and/or requests the Customer to stop off-loading the Items in accordance with clause 4.4(a)(ii), whether such costs arise due to transportation of the Items, arranging for the Items to be washed elsewhere, or otherwise;
(c) be entitled to charge the Customer for either the Penalty Charge or Wasted Business Time, as appropriate, such invoice to be payable by the Customer in accordance with clause 8.5.
4.5 Where the Customer is required to rectify any health and safety requirements and/or any specific details set out in the Proposal, but is unable to do so to the satisfaction of BPWS, BPWS shall:
(a) in the case of Items being returned to Site, be entitled to transport the Items back to the BPWS Premises, and off-load and store them at the BPWS Premises until a new delivery date can be agreed between the parties (in which case, risk in the Items shall pass back to the Customer and BPWS shall have no liability for them during transportation, storage or otherwise);
(b) in the case of Items being collected from Site:
(i) refuse to collect such Items and re-arrange with the Customer a new collection date;
(ii) collect such Items, but take such steps as is required to re-package the Items to allow safe collection of the same by BPWS (in which case risk in the Items shall remain with the Customer until BPWS has re-packaged them, from which point risk shall pass to BPWS).
In any of the circumstances set out in this clause 4.5, BPWS shall be entitled to charge the Customer, as appropriate, for:
(i) the Transportation Charges to transport the Items back to the BPWS Premises and also to return the Items to the Site once a new delivery date has been agreed;
(ii) the time taken to off-load the Items and store them at the BPWS Premises;
(iii) the Storage Costs;
(iv) the time taken to re-load the Items onto the transport for return to the Site;
(v) the wasted time spent travelling to the Site and returning to the BPWS Premises without the Items;
(vi) the Wasted Business Time;
(vii) the costs incurred in re-packaging Items to allow for safe collection.
BPWS shall raise invoices for the charges set out above at the rates specified in the Proposal and the Customer shall pay the same in accordance with clause 8.5.
4.6 Where BPWS is required to wait longer than 30 minutes (the Wait Time) in order for the Customer to rectify any health and safety requirements and/or any specific details set out in the Proposal to the satisfaction of BPWS, BPWS shall be entitled to charge for any additional time spent at the Site beyond the Wait Time at its standard hourly rate. BPWS shall raise invoices for the charges set out above at the rates specified in the Proposal and the Customer shall pay the same in accordance with clause 8.5.
5.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides to enable BPWS to prepare the Proposal are complete and accurate;
(b) co-operate with BPWS in all matters relating to the Services;
(c) provide, for BPWS, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Site and other facilities as required by BPWS or any of them in order to supply the Services;
(d) provide, in a timely manner, such information as BPWS may reasonably require, and ensure that it is accurate and complete in all material respects;
(e) inform BPWS of all health and safety and security requirements that apply at the Site;
(f) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable BPWS to supply the Services; and
(g) comply with any additional responsibilities of the Customer as set out in the Proposal.
5.2 If BPWS’ performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees or failure by the Customer to perform any relevant obligation (Customer Default), BPWS shall:
(a) not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such Customer Default;
(b) be entitled to payment of the Charges despite any such Customer Default;
(c) be entitled to recover from the Customer any additional costs, charges or losses BPWS sustains or incurs that arise directly or indirectly from such Customer Default; and
(d) without limiting or affecting any other right or remedy available to it, have the right to suspend performance of the Services until the Customer remedies the Customer Default, and rely on the Customer Default to relieve it from the performance of any of its obligations to the extent that the Customer Default prevents or delays BPWS’ performance of any of its obligations.
6.1 Each party confirms to the other that:
(a) it has full right, power and authority to enter into the Contract;
(b) it has in place all necessary approvals and consents required to allow it and, as appropriate, the other party to perform its obligations under this Contract;
(c) it shall act in good faith, in a professional manner consistent with good industry practice;
(d) neither it nor any of its officers has been convicted of any offence involving bribery, corruption, fraud, dishonesty, slavery and/or human trafficking;
(e) it has not been the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body in any jurisdiction regarding any offence or alleged offence under any anti-corruption and/or slavery and/or human trafficking legislation.
7.1 Where the Customer wishes to cancel any Services, the Customer shall give written notice of its intention to BPWS as soon as reasonably practicable (the Cancellation Notice). The Cancellation Notice shall include a copy of the Proposal that it relates to.
7.2 Where BPWS receives the Cancellation Notice 2 weeks or more before the planned start date for delivery of the Services (as specified in the Proposal):
(a) if the Customer has paid any deposit, BPWS shall refund the same in full within 10 Business Days; and
(b) the Contract shall terminate upon receipt by BPWS of the Cancellation Notice and the provisions of clause 15 shall apply.
7.3 Subject to clause 7.4, where BPWS receives the Cancellation Notice less than 2 weeks before the planned start date for delivery of the Services (as specified in the Proposal):
(a) if the Customer has paid any deposit, BPWS shall be entitled to retain the deposit in full;
(b) the Customer shall pay to BPWS 50% of the total Charges payable for the Services specified in the Proposal,
(together the Cancellation Charges); and
(c) the provisions of clause 15 shall apply.
7.4 Any cancellation of Services proposed by the Customer as a result of a Force Majeure Event shall not result in the Cancellation Charges being payable by the Customer.
8.1 In consideration for the provision of the Services, the Customer shall pay BPWS the Charges in accordance with this clause 8.
8.2 The Charges shall be calculated in accordance with the Proposal.
8.3 BPWS reserves the right to increase the Charges on a bi-annual basis in April and October with effect from the first anniversary of the Commencement Date. The increases shall take effect on the date falling 28 days after notification from BPWS of any such increase in the Charges and shall be based on the latest available figure for the percentage increase in the Retail Prices Index (as published by the UK Office for National Statistics) for the preceding 6 month period.
8.4 BPWS shall invoice the Customer at the intervals specified in the Proposal. If no intervals are specified, BPWS shall invoice the Customer at the end of each month for the Charges incurred during that month.
8.5 The Customer shall pay each invoice submitted to it by BPWS, within 30 days of the date of the invoice, in full and in cleared funds to a bank account nominated in writing by BPWS. Time for payment shall be of the essence of the Contract.
8.6 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 BPWS to the Customer, the Customer shall, on receipt of a valid VAT invoice from BPWS, pay to BPWS such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
8.7 If the Customer fails to make any payment due to BPWS under the Contract by the due date, then, without limiting BPWS’ remedies under clause 14, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.8 All amounts due under the Contract from the Customer to BPWS shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.9 Notwithstanding the provisions of clause 8.7, until all Charges that are due and owing to BPWS are paid in full, the Customer acknowledges that BPWS shall have a lien upon any Items in its possession whether the debt owed by the Customer relates to those particular Items or not. If the Customer fails to pay the Charges and BPWS has (for whatever reason) been storing the Items for more than 7 days, BPWS may sell the Items upon 10 Business Days’ written notice to the Customer. The Customer hereby confirms that where such a sale takes place, title in the Items shall be transferred to the purchaser. In these circumstances BPWS shall pay the balance of the proceeds of sale to the Customer after deducting all Charges due to it pursuant to this Contract.
8.10 Where specified in the Proposal, a deposit may be required to secure the delivery of the Services by BPWS on the dates set out in the Proposal. In these circumstances, the Customer shall make payment in full of the deposit amount on the Commencement Date. Notwithstanding the provisions of clause 8.7, if the Customer fails to pay the deposit on the Commencement Date, the Contract will be void and BPWS will make any dates set out in the Proposal available to other customers. As the deposit is a payment made to secure delivery of the Services by BPWS on the dates set out in the Proposal, BPWS will decline any other enquiries for those particular dates. Accordingly, the deposit is non-refundable except where the Customer cancels delivery of the Services in accordance with clause 7.2.
Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time in the UK relating to the use of personal data and the privacy of electronic communications, including (i) the Data Protection Act 2018 and any successor UK legislation, (ii) the retained EU law version of the General Data Protection Regulation (EU 2016/679) and (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority, that are applicable to that party.
10.1 Each party undertakes that it shall not at any time during the Contract, and for a period of 2 years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2(a).
10.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, 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 this 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 10; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
11.1 Subject to clause 11.2, all Intellectual Property Rights in or arising out of or in connection with the Services (other than the Intellectual Property Rights in any materials provided by the Customer) shall be owned by BPWS.
11.2 Each party owns the Intellectual Property Rights in its own branding, trade names, logos etc.
11.3 Neither party shall use the other party’s name or branding in any promotional material, marketing material, similar material or announcement without the prior written consent of the other.
12.1 During the Contract each party shall maintain in force insurance policies with reputable insurance companies, against all risks that would normally be insured against by a prudent businessperson in connection with the risks associated with the Contract. Each party shall produce to the other on demand a copy of the certificate for such insurance.
13.1 References to liability in this clause 13 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.3 Nothing in this clause 13 shall limit the Customer’s payment obligations under the Contract.
13.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.5 Subject to clause 13.2 and clause 13.4,
BPWS’ total liability to the Customer:
(a) for loss arising under clause 3.2(e) shall be calculated using the number of Items that are damaged or broken during washing multiplied by the Replacement Cost;
(b) for loss arising under clause 4.2 shall not exceed the lower of the charges payable by the Customer for the supply of the Services (as detailed in the Proposal) and £1,000.00;
(c) for loss arising under clause 4.3 shall not exceed the lower of the charges payable by the Customer for the supply of the Services (as detailed in the Proposal) and £1,000.00;and
(d) for all other loss or damage shall not exceed the charges payable by the Customer for the supply of the Services (as detailed in the Proposal).
13.6 Subject to clause 13.2 and clause 13.4, this clause 13.6 sets out the types of loss that are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
13.7 Unless the Customer notifies BPWS that it intends to make a claim in respect of an event within the notice period, BPWS shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract on giving not less than 30 days written notice to the other party.
14.2 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(b) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
(c) 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), 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) 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
(e) the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.3 Without affecting any other right or remedy available to it, BPWS may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
15.1 On termination or expiry of the Contract:
(a) the Customer shall immediately pay to BPWS all of BPWS’ outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, BPWS may submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) subject to the provisions of clause 7.3(a), BPWS shall refund to the Customer any payment already received in advance for Services not yet supplied to the Customer;
(c) the Customer shall arrange for collection of any Items that are located at the BPWS Premises within 7 Business Days. Subject to the provisions of clause 8.9, if the Items are not collected from the BPWS Premises within 7 Business Days, BPWS shall arrange for the Items to be returned to the Site at the Customer’s risk and cost and BPWS will invoice the Customer for such costs (to include reasonable staff time for packing, loading, transporting and managing the return of the Items) and such invoice shall be payable in accordance with clause 15.1(a);
(d) 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; and
(e) no 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, shall be affected.
16.1 Provided it has complied with clause 16.3, 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.
16.2 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.
16.3 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 36 hours 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
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
16.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 3 days, the party not affected by the Force Majeure Event may terminate this Contract by giving 7 days’ written notice to the Affected Party.
17.1 Assignment and other dealings. Neither party shall assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
17.2 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
17.3 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.4 Waiver.
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 Severance. 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 17.5 shall not affect the validity and enforceability of the rest of the Contract.
17.6 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) 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
(ii) sent by email to the address specified in the Proposal.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause 17.6 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.
17.7 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 any party the agent of the other, or authorise any party to enter into any commitments for or on behalf of the other. Each party confirms that it is acting on its own behalf and not for the benefit of any other person.
17.8 Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Contract.
17.9 Dispute Resolution. If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this Contract, the parties shall follow the procedure set out in this clause:
(a) Either party shall give the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, a senior manager of the Customer and a senior manager of BPWS shall attempt in good faith to resolve the Dispute;
(b) If the senior managers are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR Notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR Notice should be sent to CEDR. The mediation will start not later than 10 days after the date of the ADR Notice.
17.10 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.
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.
