Standard Terms and Conditions for the supply of good and services
GLEN DIMPLEX UK LIMITED (registered number 01313016) whose registered office is at Millbrook House, Grange Drive, Hedge End, Southampton, S030 2DF (“we” or “us”)
Your attention is particularly drawn to the exclusions and limitations of liability at Condition 9.
1. DEFINITIONS AND INTERPRETATION
In these Conditions:
1.1 the following words and expressions have the following meanings and, in addition, any words and expressions defined in any Condition will have the same meaning when used in any other Condition:
“Business Day” a day that is not a Saturday, Sunday or public or bank holiday in England, Northern Ireland, Scotland and/or Wales
“Charges” the charges for the Services set out in our quotation as those charges may be varied from time to time in accordance with Condition 6.4
“Group Company” in respect of a person, its Parent Undertakings, its Subsidiary Undertakings and the Subsidiary Undertakings of any of its Parent Undertakings from time to time (“Parent Undertaking” and “Subsidiary Undertaking” having the meanings set out in section 1162 Companies Act 2006)
“Liability” liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence
“Order” your order for the supply of goods and services by us, set out in our standard order form, your acceptance of our quotation or your order form (as applicable)
“Order Acknowledgement” our written acceptance of the Order set out in our order acknowledgement response
“Prices” the prices for the Goods set out in our quotation or if not set out in our quotation, the prices for the Goods set out in our price list in force on the date of Delivery, in each case as those prices may be varied from time to time in accordance with Condition 6.4
“Specification” the written technical product specification for the Goods set out in www.GDHV.com (or any replacement or successor website)
“you” the person named as the customer in the Order
(a) any value added tax imposed by the Value Added Tax Act 1994;
(b) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112);
(c) any other tax of a similar nature to that referred to in paragraphs (a) or (b) above, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, any tax referred to in paragraphs (a) or (b) above; and
(d) any other tax of a similar nature to that referred to in paragraphs (a), (b) or (c) above imposed in any country in the world
“Warranty Period” the period starting on Delivery and ending on the earlier of:
(a) the time at which the relevant Good is incorporated into another product or used in a manufacturing process; or
(b) expiry of a period of 12 months (unless otherwise stated in writing by us) from and including the date of Delivery
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions;
1.3 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.4 references to any legislation or legislative provision will include any subordinate legislation made under it and will be construed as references to such legislation, legislative provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them and the ejusdem generis rule will not apply;
1.6 references to “in writing” or “written” include e-mail but not other methods of electronic messaging; and
1.7 any reference to:
1.7.1 time of day is to London time; and
1.7.2 a day is to a period of 24 hours running from midnight to midnight.
2. CONTRACT FORMATION
2.1 Any quotation given by us will be valid for a period of 30 days from and including its date, and will constitute an invitation to treat and not an offer.
2.2 The Order constitutes an offer by you to purchase the goods set out in the Order (“Goods”) and the services set out in the Order (“Services”) from us on these Conditions. A contract for the supply of Goods and Services by us to you on these Conditions (the “Contract”) will be formed when we accept the Order by issuing an Order Acknowledgement to you. For the avoidance of doubt, we are under no obligation to accept the Order.
2.3 These Conditions are the only terms and conditions on which we will supply goods and services to you and will apply to the exclusion of all other terms and conditions including any terms and conditions which you purport to apply under any purchase order, confirmation of order or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
2.4 Delivery or commencement of the performance of the Services will be deemed conclusive evidence of your acceptance of these Conditions.
2.5 We will be entitled, at our discretion, to deliver Goods by separate instalments. We will be entitled to invoice the Price for each instalment separately in accordance with Condition 6.5. Each instalment will be deemed to be a separate contract and no cancellation or termination of any one contract relating to an instalment will give you the right to cancel or terminate any other contract.
3. THE GOODS
3.1 We will be entitled at any time prior to supply of Goods:
3.1.1 to vary the design, finish or Specification of Goods and/or their packaging; and/or
3.1.2 to substitute any materials or parts which are used in Goods and which are unavailable for any reason with alternative materials or parts if:
3.1.3 this does not materially affect their quality or performance; or
3.1.4 this is necessary to comply with any health and safety or other legal requirements. We will use reasonable endeavours to give you prior written notice of any such variation or substitution.
3.2 With the exception of the Specification, all samples, drawings, descriptive and illustrative matter and advertising issued or published by us (or the manufacturer of the Goods) whether in catalogues, brochures, websites, other promotional material or otherwise are for the sole purpose of giving an approximation of the relevant Good.
3.3 The Contract is not a sale by sample.
4.1 Delivery will be in accordance with Option 1 or Option 2 below, as specified in the Order Acknowledgement or as requested by you under Condition 4.8.1
4.2 OPTION 1 - if collection by you is specified in the Order Acknowledgement or under Condition 4.8.1
You will collect the Goods from our premises at NDC Burnley, Bentley Wood Way, Network 65 Business Park, Hapton, Burnley BB11 5ST and we will load them onto the collecting vehicle during the hours of 9:00 am to 5:00 pm on the date agreed in writing with you for collection. Delivery of the Goods (“Delivery”) will be deemed to occur at the time of collection (prior to loading). You will observe all such health and safety and other requirements as notified to you by us when on our premises.
4.3 OPTION 2 – if delivery by us is specified in the Order Acknowledgement or under Condition 4.8.1
We will deliver the Goods to the address specified in the Order Acknowledgement or under Condition 4.8.1 and you will be responsible for off-loading the Goods from the delivery vehicle, unless we have agreed in writing that we are responsible for off-loading. We will inform you at least 3 days in advance of the date on which the Goods will be delivered. Delivery of the Goods (“Delivery”) will be deemed to occur when they have been off-loaded at the delivery address.
4.4 We will use reasonable endeavours to make available for collection or deliver Goods (as applicable) on the date agreed in writing with you for collection or the date informed to you on which the Goods will be delivered (as applicable), but time for collection or delivery of the Goods will not be of the essence of the Contract. Any collection or delivery dates given by us are estimates only save for the dates which we agree with you under Condition 4.2 or which we inform you of under Condition 4.3.
4.5.1 the Goods have not been made available for collection or delivered under Condition 4.2 or Condition 4.3 (as applicable) within 7 days from and including the date agreed in writing with you for collection or the date informed to you on which the Goods will be delivered (as applicable); and
4.5.2 we fail to make those Goods available for collection or deliver those Goods under Condition 4.2 or Condition 4.3 (as applicable) within 7 days of a written notice referring to this Condition 4.5 and setting out your rights under it being given by you, you will be entitled to cancel the Contract by giving written notice to that effect to us. If you exercise your right of cancellation we will refund to you any monies which you have already paid to us under the Contract and you will not be required to pay any further monies to us under the Contract.
4.6 Save as provided in Condition 4.5, you will not be entitled to cancel the Contract or to reject any Goods by reason of a delay in delivery or failure to deliver.
4.7 If you fail to collect or accept delivery of the Goods (as applicable) we will be entitled to:
4.7.1 store or arrange for storage of the Goods until you collect or accept delivery of them or they are disposed of under Condition 4.7.2 (as applicable) and to take such action as we consider necessary to attempt to re-deliver the Goods to the address specified in the Order Acknowledgement;
4.7.2 treat the Contract as repudiated by you and dispose of the Goods in any way we see fit, including by sale to another person. If we sell any of the Goods under this Condition 4.7.2 at a price which is less than the relevant Price plus any relevant packaging, insurance, carriage and delivery costs, we will be entitled to charge you for the shortfall; and
4.7.3 charge you for all costs and expenses which we incur under Conditions 4.7.1 and 4.7.2.
4.8 If we make available for collection or deliver a quantity of Goods which is less than the quantity set out in the Contract, you will notify us of such shortfall with 3 Business Days of the date of Delivery. You will not be entitled to cancel the Contract or to reject any Goods by reason of such shortfall. You will be entitled by giving written notice to that effect to us, to request:
4.8.1 the provision of such shortfall by us (and whether you require collection by you or delivery by us); or
4.8.2 a pro rata reduction to the sum invoiced by us under Condition 6.5 in respect of the shortfall pursuant to the relevant Contract.
4.9 If you give written notice under Condition 4.8.1, we will use reasonable endeavours to make available for collection or deliver the shortfall of Goods (as applicable) on the date agreed in writing with you for collection or the date informed to you on which the Goods will be delivered (as applicable), but time for collection or delivery of the Goods will not be of the essence of the Contract. Any collection or delivery dates given by us are estimates only save for the dates which we agree with you or which we inform you of under this Condition.
4.10 If you give written notice under Condition 4.8.2 then the sum invoiced by us under Condition 6.5 for the relevant Contract will be adjusted on a pro rata basis to take account of the shortfall.
4.11 Except as set out in Condition 4.8, Condition 4.9 and Condition 4.10 and subject to Condition 9.5, we will not have any Liability as a result of any under delivery.
5. PASSING OF RISK AND RETENTION OF TITLE
5.1 Risk of damage to or loss of the Goods will pass to you on Delivery.
5.2 Subject to Conditions 5.3 and 5.4, legal and beneficial ownership of the Goods will not pass to you until we have received in full in cleared funds:
5.2.1 all sums due to us in respect of the Goods; and
5.2.2 all other sums which are or which become due to us from you on any account whatsoever.
5.3 You may resell the Goods in the ordinary course of your business and, if you do so, legal and beneficial ownership of Goods will pass to you immediately prior to you entering into a binding contract for the sale of those Goods.
5.4 We may, by giving written notice to you, pass legal and beneficial ownership of the Goods (or any of them) to you at any time before such ownership would otherwise have passed to you.
5.5 Until ownership of the Goods has passed to you, you will:
5.5.1 hold the Goods on a fiduciary basis as our bailee;
5.5.2 store the Goods (at no cost to us) separately from all other goods in such a way that they remain readily identifiable as our property;
5.5.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.5.4 not, without our prior written consent, annex any Goods to your premises;
5.5.5 maintain the Goods in satisfactory condition;
5.5.6 keep the Goods insured for their full price against damage or loss on an “all risks” basis with insurers approved by us, (acting reasonably), whenever requested by us produce a copy of the policy of insurance in respect of the Goods to us, do nothing and not omit to do anything which in consequence permits any insurer to refuse to indemnify you in full in accordance with the terms of any insurance policy maintained in respect of the Goods in respect of any claim made under any such insurance policy; and
5.5.7 procure that any insurance proceeds received in respect of lost or damaged Goods are paid to us, to the extent required to satisfy your indebtedness to us.
5.6 You may use the Goods in the ordinary course of your business before ownership has passed to you.
5.7 Your right to possession, use and resale of the Goods will terminate immediately if, before ownership of the Goods passes to you in accordance with Conditions 5.2, 5.3 or 5.4,:
5.7.1 any of the following occurs:
184.108.40.206 you have a monitor, receiver of any kind, administrator or provisional liquidator appointed in respect of you or your business;
220.127.116.11 any person (including you) takes any step or action to appoint a monitor or administrator in respect of you;
18.104.22.168 you pass a resolution in respect of your winding-up (save, in the case of a resolution for winding up, for the purpose of a solvent restructuring previously approved in writing by us) or have a winding up order made by a court in respect of you;
22.214.171.124 you or any other person proposes or you enter into any composition or arrangement with creditors (other than relating to a solvent restructuring previously approved in writing by us);
126.96.36.199 you cease to carry on business;
188.8.131.52 you are the subject of anything analogous to any of the events referred to above under the laws of any applicable jurisdiction or are the subject of any proceeding in any Member State of the European Union which is capable of recognition under the EC Regulation on Insolvency Proceedings (EC 1346/2000) or the EU Regulation on Insolvency Proceedings (Recast) (EU 2015/848) as those regulations are enacted by an institution of the European Union and as amended from time to time or are the subject of an application for the recognition of a foreign insolvency proceeding under the Cross-Border Insolvency Regulations 2006 (SI 2006/1030);
5.7.2 we give you written notice that we have any reasonable concerns regarding your financial standing;
5.7.3 you fail to pay any sum due to us under the Contract on or before the due date or are in breach of any of your obligations under the Contract or any other contract between us and you;
5.7.4 you encumber or in any way charge any of the Goods; or
5.7.5 the Contract terminates for any reason.
5.8 Once we have delivered the Goods to you, we will be entitled to recover payment for the Goods (including by way of an action for the price) notwithstanding that ownership of any of the Goods has not passed from us.
5.9 You grant and will procure that the owner of any relevant third party premises grants, us, our agents, employees and sub-contractors an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where your right to possession, use and resale has terminated, to recover them.
5.10 If your right to possession, use and resale of the Goods terminates in accordance with Condition 5.7, we will be entitled to issue you with a credit note for all or any part of the price of the Goods together with VAT thereon.
5.11 Our rights contained in this Condition 5 will survive expiry or termination of the Contract however arising.
6. PRICE AND PAYMENT
6.1 You will pay the Prices and Charges to us in accordance with this Condition 6.
6.2 The Prices and Charges are exclusive of packaging, insurance, carriage and delivery costs and those reasonable travel, accommodation and subsistence expenses incurred by us from time to time in performing the Services (“Expenses”) which will be payable by you in addition to the Prices and Charges.
6.3 The consideration for any supply made under the Contract is exclusive of any VAT which is due in relation to such supply, which will be payable in addition to that consideration in the manner and at the rate prescribed by law from time to time.
6.4 We will be entitled to vary the Prices and/or Charges at any time by giving written notice to you to reflect any variation in the cost of supplying the Goods and/or Services which arises as a consequence of any variation in your requirements for the Goods and/or Services, any information provided by you being inaccurate or incomplete or any failure or delay by you in providing information.
6.5 We will be entitled to invoice you for the Prices for the Goods and any packaging, insurance, carriage and delivery costs payable by you in addition to the Prices following us issuing the Order Acknowledgement.
6.6 We will be entitled to invoice you for the Charges for the Services and any Expenses payable by you in addition to the Charges following commencement of performance of the Services.
6.7 Each invoice will be payable by you within 30 days after the end of the month of the invoice date. You will make all payments in pounds sterling in available cleared funds by electronic transfer to the following bank account or such other bank account as we may nominate from time to time:
BANK: National Westminster Bank PLC
ACCOUNT NUMBER: 00703850
SORT CODE: 60-00-01
6.8 Notwithstanding any purported contrary appropriation by you, we will be entitled, by giving written notice to you, to appropriate any payment by you to any invoice issued by us.
6.9 If any sum payable under the Contract is not paid on or before the due date for payment we will be entitled to charge you interest on that sum at the rate set out in the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis.
6.10 If you fail to make any payment due to us under the Contract or any other contract between you and us on or before the due date we will be entitled to withhold further deliveries of Goods and/or to suspend provision of the Services until payment of all overdue sums has been made.
6.11 If you fail to make any payment due to us under the Contract on or before the due date or if we have any concerns regarding your financial standing we will be entitled, by giving written notice to that effect to you, to issue invoices prior to Goods being made available for collection or delivered (as applicable) and we will not be required to make available for collection or deliver (as applicable) the Goods until the relevant invoice has been paid in full.
6.12 If you fail to make any payment due to us under the Contract on or before the due date or if any of the events or circumstances set out in Condition 5.7.1 occur all invoices issued will immediately become due and payable.
6.13 Save as otherwise expressly provided in these Conditions or required by law, all payments to be made by you to us under the Contract will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
6.14 Following expiry or termination of the Contract:
6.14.1 we will be entitled to invoice all Prices and Charges and any packaging, insurance, carriage and delivery costs and Expenses incurred which have not yet been invoiced; and
6.14.2 all invoices (including any invoices issued under Condition 6.14.1) will become immediately due and payable by you.
7.1 We warrant to you that at the time of Delivery the Goods will:
7.1.1 subject to Condition 3.1, conform to the Specification in all material respects; and
7.1.2 be free from material defects in design, materials or workmanship.
7.2 If there is a breach of either of the warranties at Condition 7.1, you will:
7.2.1 give us written notice of the breach, such notice to be given:
184.108.40.206 in respect of any breach that should be apparent from a visual inspection of the relevant Good, within 3 Business Days from and including the date of Delivery; or
220.127.116.11 in respect of any other breach, within 3 Business Days after you become aware of the breach and prior to expiry of the Warranty Period;
7.2.2 at our option either return to us the relevant Good or permit us or our agent or sub-contractor to inspect it at your premises;
7.2.3 provide us with all information and assistance which we may reasonably require to investigate the alleged breach; and
7.2.4 not use the relevant Good(s) after becoming aware of the breach.
7.3 Subject to Condition 9.5:
7.3.1 our only Liability for breach of either of the warranties at Condition 7.1 will be, at our option, to repair or replace the relevant Good or to reduce the Price of the relevant Good by a sum which is equitable in the circumstances;
7.3.2 we will not have any Liability for any costs, charges, losses, damages or expenses incurred in providing the relevant Good to us for such repair or replacement including the cost of access equipment, plant and machinery, excavation and making good to any surrounding property.
7.4 Your only remedy for breach of the obligation at Condition 7.3.1 will be in damages.
7.5 Subject to Condition 9.5, we will not have any Liability for a breach of a warranty at Condition 7.1 if:
7.5.1 notice of the breach was not given to us in accordance with the relevant timescale as set out in Condition 7.2.1;
7.5.2 you do not comply with any of your obligations at Conditions 7.2.2, 7.2.3 or 7.2.4 in respect of the breach; or
7.5.3 the breach was drawn to your attention before formation of the Contract or the Good was examined by you before formation of the Contract and the examination ought to have revealed the breach.
7.6 You acknowledge that, without limitation, the following defects are not to be taken as evidence of a breach of a warranty at Condition 7.1:
7.6.1 a defect in a Good caused by damage in transit after Delivery;
7.6.2 a defect in a Good caused by fair wear and tear; or
7.6.3 a defect in a Good caused or exacerbated by improper use, handling, alteration, installation, repair, maintenance, storage or failure to comply with instructions provided with the Good, in each case after Delivery.
7.7 Subject to Condition 9.5 and without prejudice to Condition 7.1, we will not have any Liability if the Goods:
7.7.1 are not fit for your intended purpose; or
7.7.2 do not meet your requirements,
and without prejudice to Condition 7.1 we make no representation, warranty or otherwise that the Goods are fit for your intended purpose or meet your requirements.
7.8 Subject to Condition 9.5, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Contract.
8.1 We warrant to you that we will provide the Services with reasonable care and skill.
8.2 We will use reasonable endeavours to provide the Services on the estimated performance date set out in the Order Acknowledgement, but time for provision of the Services will not be of the essence of the Contract. Any performance dates given by us are estimates only.
9. EXCLUSIONS AND LIMITATIONS OF LIABILITY
Your attention is particularly drawn to this Condition.
9.1 Subject to Condition 9.5, our entire Liability for any non-delivery of Goods or failure to deliver the Goods in accordance with the timescales set out or referred to in the Contract or agreed between us will be as set out in Condition 4.5 and we will have no other Liability for any such non-delivery or failure to deliver. For the avoidance of doubt such Liability will be subject to Condition 9.2 and will be taken into account in calculating whether the financial limit in Condition 9.2 has been reached.
9.2 Subject to Condition 9.5, our maximum aggregate Liability will be limited to the sum of the applicable Charges and the applicable Prices.
9.3 We will have no Liability to you for any:
9.3.1 loss of profit (whether direct, indirect or consequential);
9.3.2 loss of use, loss of revenue, loss of production or loss of business (in each case whether direct, indirect or consequential);
9.3.3 loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential);
9.3.4 loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential);
9.3.5 loss of bargain (whether direct, indirect or consequential);
9.3.6 liability that you have to third parties (whether direct, indirect or consequential); or
9.3.7 indirect or consequential loss,
subject always to Condition 9.5.
9.4 We will not be in breach of the Contract or otherwise liable to you for any failure to perform or delay in performing our obligations under the Contract if such failure or delay is due to any event or circumstance beyond our reasonable control.
9.5 Nothing in the Contract will operate to exclude or restrict any Liability of a party:
9.5.1 that cannot be excluded or restricted in the Contract in respect of death or personal injury resulting from negligence by operation of Section 2(1) Unfair Contract Terms Act 1977;
9.5.2 for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable;
9.5.3 for breach of its obligations arising under section 12 Sale of Goods Act 1979;
9.5.4 for breach of its obligations arising under Section 2 Supply of Goods and Services Act 1982; or
9.5.5 for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
9.6 Any of our Liability which falls within Condition 9.5 will not be taken into account in assessing whether the financial limit in Condition 9.2 has been reached.
9.7 Nothing in this Condition 9 will prevent or restrict the right of a party to seek injunctive relief or specific performance or other discretionary remedies of the court.
9.8 Each of our employees, agents and sub-contractors will be entitled to enforce all the terms of this Condition 9 subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of the Contract. Accordingly and for the avoidance of doubt the financial limits on liability set out in Condition 9 are the maximum liability of us, our employees, agents and sub-contractors in aggregate. The parties may vary or rescind the Contract without the consent of our employees, agents or sub-contractors.
10. YOUR OBLIGATIONS
10.1 You will:
10.1.1 provide us with all such information and assistance as we may require from time to time to perform our obligations or exercise our rights under the Contract;
10.1.2 notify us within 24 hours of any discussions, negotiations or proposals with any of your creditors in relation to a debt or debts owed to any of them or any discussions relating to your insolvency;
10.1.3 not re-package the Goods or remove or alter any trade marks, patent numbers, serial numbers, labels or other identifying marks on the Goods or their packaging or add any other trade marks, patent numbers, serial numbers, labels or other identifying marks to the Goods or their packaging;
10.1.4 not alter or modify the Goods in any way;
10.1.5 not remove from Goods or their packaging any instructions or warnings provided by us; and
10.1.6 promptly give us written notice of any dispute you are involved in and any claim or complaint made against you in respect of Goods.
10.2 You will comply with our instructions and provide such cooperation and assistance as we may request in connection with:
10.2.1 any product recall initiated by or involving us and relating to Goods;
10.2.2 any other corrective action initiated by or involving us to address actual or potential defects, safety or compliance issues relating to Goods; or
10.2.3 any notification to and/or investigation by a regulatory authority concerning actual or potential defects, safety or compliance issues relating to Goods.
10.3 Notwithstanding any other term of the Contract we will not be in breach of the Contract to the extent our failure to perform or delay or defect in performance of its obligations under the Contract arises as a result of:
10.3.1 any breach by you of your obligations contained in the Contract provided that we use our reasonable endeavours to perform our obligations notwithstanding the breach by you;
10.3.2 us relying on any incomplete or inaccurate data provided by a third party; or
10.3.3 us complying with any instruction or request by you or one of your employees.
11.1 If you commit a material breach of the Contract we may terminate the Contract by giving not less than 30 days’ written notice to that effect to you. This Condition 11.1 will not apply to any failure by you to make any payment due to us under the Contract on or before the due date. Condition 11.2 will apply instead to any such failure.
11.2 We may terminate the Contract by giving not less than 7 days’ written notice to that effect to you if you fail to make any payment due to us under the Contract on or before the due date.
11.3 We may terminate the Contract immediately by giving written notice to that effect to you if any of the events or circumstances set out in Condition 5.7.1 occur. You will notify us immediately upon the occurrence of any such event or circumstance.
11.4 If an event or circumstance which gives rise to relief from liability under Condition 9.4 continues for a period of more than 30 days, either party will be entitled to terminate the Contract by giving not less than 7 days written notice to that effect to the other party.
11.5 Following expiry or termination of the Contract:
11.5.1 any Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract will continue in force; and
11.5.2 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
11.6 After the date of expiry or termination of the Contract each party will, subject to the exception set out in Condition 11.7:
11.6.1 if requested to do so, return to the other party all of the other party’s Confidential Information (including all copies and extracts) in its possession or control within 10 days; and
11.6.2 immediately cease to use the other party’s Confidential Information.
11.7 Each party may retain any of the other party’s Confidential Information which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting or taxation purposes. The provisions of Condition 12 will continue to apply to retained Confidential Information.
12.1 Each party will, subject to Condition 12.2:
12.1.1 only use the other party’s Confidential Information for the purpose of performing its obligations and exercising its rights under the Contract;
12.1.2 keep the other party’s Confidential Information secret, safe and secure; and
12.1.3 not disclose the other party’s Confidential Information to any other person.
12.2 Each party may disclose the other party’s Confidential Information:
12.2.1 to the extent required by law, by an order of a court of competent jurisdiction or by any securities exchange, listing authority, governmental or regulatory authority to which it is subject or to which it submits; and
12.2.2 to those of its officers, directors, employees and professional advisers and, in our case, our agents and sub-contractors, who need access to that Confidential Information so that it can perform its obligations and exercise its rights under the Contract. A party disclosing the other party’s Confidential Information under this Condition 12.2.2 will procure that each person to whom it discloses that Confidential Information will not do or omit to do anything which if done or omitted to be done by that party would be a breach of this Condition 12.
12.3 For the purposes of this Condition 12, “Confidential Information” means the terms of the Contract and any information that relates to a party (or any of its Group Companies or businesses) and which is disclosed to the other party in connection with the Contract and any trade secret where the trade secret holder is the party disclosing the trade secret or any of its Group Companies, but excluding information that:
12.3.1 is at the relevant time in the public domain (other than by virtue of a breach of this Condition 12
12.3.2 was received by the other party from a third party who did not acquire it in confidence; or
12.3.3 is developed by the other party without any breach of the Contract.
12.4 Each party acknowledges and agrees that damages alone would not be an adequate remedy for breach of this Condition 12 by that party. Accordingly, the other party will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) and to any remedies available to a trade secret holder for any breach or threatened breach of this Condition 12 by the first party.
13.1 Subject to Condition 13.4, any notice given under or in connection with the Contract will be in the English language and:
13.1.1 sent to the relevant party’s address by pre-paid first class post, airmail post or mail delivery service providing guaranteed next working day delivery and proof of delivery; or
13.1.2 delivered to or left at the relevant party’s address (but not, in either case, by one of the methods set out in Condition 13.1.1
and, in the case of any notice to be given to us, marked for the attention of our specified representative. Our address and representative are set out below and your address is that detailed in the Order and may be changed by the relevant party giving at least 7 Business Days’ notice in accordance with this Condition 13.
Glen Dimplex UK Limited, Old Airport Road, Cloghran, Co Dublin, K67 DT89
For the attention of: Team Leader, Sales Order Management
13.2 Any notice given in accordance with Condition 13.1 will be deemed to have been served:
13.2.1 if given by first class post or mail delivery service, in each case as set out in Condition 13.1.1, at 9.00 a.m. on the fourth Business Day after the date of posting;
13.2.2 if given by airmail post as set out in Condition 13.1.1, at 9.00 a.m. on the tenth Business Day after the date of posting; and
13.2.3 if given as set out in Condition 13.1.2, at the time the notice is delivered to or left at that party’s address; provided that if a notice is deemed to be served before 11.00am on a Business Day it will be deemed to be served at 11.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 6.00pm on a Business Day it will be deemed to be served at 11.00am on the immediately following Business Day.
13.3 To prove service of a notice it will be sufficient to prove that the provisions of Condition 13.1 were complied with.
13.4 This Condition 13 will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
14.1 Subject to and as set out in Condition 14.2, the Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
14.1.1 neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person and whether made to the first party or any other person) which is not expressly set out in the Contract;
14.1.2 the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract; and
14.1.3 nothing in this Condition 14.1 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
14.2 If, as at the date of the Contract, a GDHV Commercial Terms Agreement is in place between the parties then to the extent only of any conflict or inconsistency between the Contract and such GDHV Commercial Terms Agreement, the terms of such GDHV Commercial Terms Agreement will apply and prevail.
14.3 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
14.4 If any term of the Contract (including any exclusion from, or limitation of, liability set out in Condition 9) is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect. This Condition 14.4 will not apply to a term which ceases to have effect under section 233A, 233B or 372A Insolvency Act 1986. You agree that where any term ceases to have effect under any of those Sections because it is subject to an insolvency procedure as referred to in any of those Sections, if that insolvency procedure comes to an end without you becoming subject to a further such insolvency procedure, such term will be deemed once again to have effect in accordance with its terms.
14.5 No variation to the Contract will be effective unless it is in writing and signed by a duly authorised representative or director on behalf of each of the parties.
14.6 Nothing in the Contract and no action taken by the parties in connection with it or them will create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
14.7 Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
14.8 Save as provided in Condition 9.8, the parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
14.9 Our rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.
14.10 You will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of your rights under the Contract. You will be entitled to sub-contract your obligation to collect Goods under Condition 4.1, but you will not be entitled to sub-contract any of your other obligations under the Contract.
15. GOVERNING LAW AND JURISDICTION
15.1 The Contract and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.
15.2 Subject to Condition 15.3, the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
15.3 Either party may seek interim injunctive relief or any other interim measure of protection in any court of competent jurisdiction.
15.4 Subject to Condition 15.3, each party waives any objection to, and agrees to submit to, the jurisdiction of the courts of England and Wales. Each party agrees that a judgment or order of any such court is binding upon it and may be enforced against it in the courts of any other jurisdiction.