IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply in these Conditions:
| “Administrative Charge” | means the fee that is chargeable by the Supplier for the return of any Goods by the Customer further to Clause 5.1 and which shall be either 20% of the value of the Goods or minimum £10.00 whichever is the greater. |
| “Affected Party” | has the meaning given in Clause 13.1. |
| “Applicable Laws” | means all applicable laws, statutes, regulations and codes from time to time in force. |
| “Business Day” | means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. |
| “Business Hours” | means the period from 9.00 am to 5.00 pm on any Business Day. |
| “Carriage and Package Charge” | means the fee that is chargeable by the Supplier for the delivery of any Goods to the Customer further to Clause 4.1 and which shall be £4.95 + VAT per Shipping Carton. |
| “Change of Control” | means the obtaining of control of a Party by any person or group of persons acting in concert who or which did not previously exercise control of that Party. |
| “Commencement Date” | has the meaning given in Clause 2.2. |
| “Conditions” | these terms and conditions as amended from time to time. |
| “Confidential Information” | means all confidential information (however recorded or preserved) disclosed by a Party or its Representatives to the other Party and that Party’s Representatives whether before or after the date of this Contract in connection with the sale of Goods by the Supplier to the Customer, including but not limited to: (a) the existence and terms of this Contract; (b) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, assets, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or of any member of the Group to which the disclosing party belongs); and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the Group to which the disclosing party belongs); (c) any information developed by the Parties in the course of carrying out this Contract. |
| “Contract” | the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions. |
| “Control” | means: (i) the power (whether directly or indirectly and whether by the ownership of share capital, the possession of voting power, contract or otherwise) to appoint and/or remove all or such members of the board of directors or other governing body of a Party as are able to cast a majority of the votes capable of being cast by the members of that board or body on all, or substantially all, matters, or otherwise to control or have the power to control the policies and affairs of that Party (and for the purposes of determining whether the power to appoint or remove directors exists the provisions of section 1159 of the Companies Act 2006 shall apply); and/or (ii) the holding and/or possession of the beneficial interest in and/or the ability to exercise the voting rights applicable to shares or other securities in any Party (whether directly or by means of holding such interests in one or more other persons) which confer in aggregate on the holders thereof more than fifty percent of the total voting rights exercisable at general meetings of that Party on all, or substantially all, matters. |
| “Customer” | the person or firm who purchases the Goods from the Supplier as detailed in the Order. |
| “Customer Services Team” | means the Supplier’s customer services team, with contact details as follows: Customer Services Team https: https://nrs-uk.com/contact-us/ email: customerservice@nrs-uk.com Telephone Number: 03451207778 |
| “Delivery Location” | has the meaning given in Clause 4.2. |
| “Finance Department” | means the Supplier’s finance team with contact details as follows: finance@nrs-uk.com. |
| “Force Majeure Event” | means any circumstance not within a Party’s reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) 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; (d) nuclear, chemical or biological contamination or sonic boom; (e) 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; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the Party seeking to rely on this clause, or companies in the same group as that Party); and (h) interruption or failure of utility service. |
| “Goods” | means the goods (or any part of them) set out in the Order. |
| “Group” | means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. |
| “Intellectual Property Rights” or “IPR” | means rights to inventions, patents, designs, utility models, whether registered or not, copyright, moral rights, trademarks, business names and domain names, database rights, rights to use and protect the confidentiality of Confidential Information (including trade secrets and know-how), software, discoveries, improvements, concepts, models, drawings, secret formulae and processes 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 the United Kingdom or any part of the world and the term “Intellectual Property” shall be construed accordingly. |
| “Next Day Delivery Charge” | the fee that is chargeable by the Supplier for the next day delivery of any Goods to the Customer further to Clause 4.7 and which shall be £10.00 + VAT per Shipping Carton at the time of Order. |
| “Offshore Delivery Charge” | means the fee that is chargeable by the Supplier for the delivery of any Goods to the Customer at any offshore destinations as referenced in Clause 4.2 and which shall be £10.00 + VAT per Shipping Carton at the time of Order. |
| “Order” | means the Customer’s order for the Goods as set out in the Customer’s purchase order form. |
| “Party” | means either the Customer or the Supplier and together shall be referred to as the “Parties”. |
| “Representatives” | means, in relation to a Party, its employees, officers, contractors, subcontractors, representatives and advisers. |
| “Shipping Carton” | means one individual box. |
| “Specification” | means any specification for the Goods, including any relevant plans or drawings, that is agreed in writing in advance by the Customer and the Supplier. |
| “Supplier” | means the company or entity from whom the Customer purchases the Goods, namely NRS-UK Limited, registered in England and Wales with company number 16629004. |
| “Supplier Export Division” | means the Supplier’s export division team, with contact details as follows: Supplier’s Export Division Team email: exportsales@nrs-uk.com Telephone Number: 03451207778. |
| “Third Party” or “Third Parties” | means any person, government, firm, corporation, unincorporated association, authority, agency or legal entity not a party to this Contract. |
| “Warranty Period” | has the meaning given in Clause 6.1. |
| “VAT” | means value added tax or any equivalent tax chargeable in the UK or elsewhere. |
1.2 Interpretation
1.2.1 In the Contract, except where the context requires otherwise:
1.2.1.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.1.2 references to statutory provisions are references to those provisions as in force at the date of this Contract;
1.2.1.3 words denoting any gender include all genders and words denoting the singular include the plural and vice versa;
1.2.1.4 references to clauses, sub-clauses and schedules are to those in this Contract; and
1.2.1.5 headings are for convenience only and do not affect the construction of this Contract;
1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3 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.
2.2 The Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions. The Customer must ensure that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions of the Goods contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of twenty (20) Business Days from its date of issue.
2.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.7 These Conditions apply only to business transacted in the United Kingdom. For orders for Goods destined for export, please contact the Supplier’s Export Division for details of the ordering process.
3. GOODS
3.1 The Goods are described in the Supplier’s digital (https://nrs-uk.com/products/) and the Specification.
3.2 The Supplier will only provide the Goods set out in the Order and reserves the right to cancel any Order before the Goods are despatched, if in the reasonable opinion of the Supplier, the terms of any Order are unable to be met.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
3.4 Goods contained in the catalogue are offered subject to availability. Under normal circumstances, Goods on the Order will be despatched in full. If any Goods are out of stock, the Supplier will notify the Customer on the despatch documentation and will use its reasonable endeavours to supply the Goods as soon as possible. Alternatively, the Supplier may supply a comparable substitute item or request that the Customer places a new Order. If the Customer has any enquiries regarding the above, they should contact the Customer Services Team.
3.5 The Goods catalogue and specifications, without limitation, are protected by the Supplier’s Intellectual Property Rights. No part of them may be reproduced, modified or photocopied or stored in any data retrieval system, without the Supplier’s prior written consent.
4. DELIVERY OF GOODS
In relation to delivery of the Goods to the Customer, the following shall apply:
4.1 For UK Mainland deliveries:
4.1.1 Orders with a net value below £250 (excluding VAT and carriage) will be subject to Carriage and Package Charge;
4.1.2 Orders with a net value of £250 or more will be delivered free of charge, provided that the delivery is to a single UK mainland destination;
4.1.3 deliveries will be made using the most cost effective method, determined by the Supplier based on the size and weight of the order.
4.1.4 if the Customer requires a specific delivery method, this must be specified at the time of the Order and the Customer may incur additional charges. Quotes are available from the Customer Services Team; or
4.2 For Offshore deliveries:
4.2.1 deliveries to offshore destinations (including Northern Ireland, the Scottish Isles, the Isle of Wight and the Isle of Man) will be subject to an Offshore Delivery Charge;
4.2.2 additional charges may apply for larger or heavier items (including, without limitation, beds, chairs, treatment furniture, portable hoists, outdoor equipment and showering benches) and for direct delivery items, foe which a separate quote will be provided at the time of ordering;
4.2.3 a higher carriage charge applies to all postcodes beginning BT,HS,IM, IV, KW, ZE and parts of postcodes KA,PA,PH,PO and TR. For further information or quotations, the Customer should contact the Customer Services Team.
4.3 The Supplier shall ensure that:
4.3.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.3.2 it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packing materials shall be at the Supplier’s expense.
4.4 The Supplier shall deliver the Goods in accordance with the terms set out in this Clause 4 and as detailed in the Order or such other location as the Parties may agree (“Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
4.5 Delivery of the Goods shall be completed at the Delivery Location in accordance with the applicable Incoterm.
4.6 Any dates quoted 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.
4.7 If the Customer requires next day delivery, this can be arranged by the Customer Services Team for Orders received before 12pm on any Business Day subject to payment by the Customer of a Next Day Delivery Charge.
4.8 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.
4.9 If the Supplier, or its agent, is unable to effect delivery to the Customer because the Customer fails to take delivery in accordance with Clause 4.6, then except where that failure is caused by the Supplier’s failure to comply with its obligations under the Contract, the Supplier shall charge the Customer those delivery costs and for the cost of retaining, insuring and storing the Goods until actual delivery takes place.
4.10 If the Customer fails to take delivery of the Goods within ten (10) Business Days of the Supplier notifying the Customer that the Goods are ready, 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:
4.10.1 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 the Goods were ready; and
4.10.2 the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.11 If ten (10) Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery 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, charge the Customer for any shortfall below the price of the Goods.
4.12 If the Supplier delivers up to and including 10% 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.
4.13 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. ACCEPTANCE AND RETURNS
5.1 The Customer may reject any Goods delivered to it that do not comply with Clause 6.1, provided that:
5.1.1 notice of rejection is given to the Supplier:
5.1.1.1 in the case of a defect that is apparent on normal visual inspection, within -five (5) Business Days of Delivery;
5.1.1.2 in the case of a latent defect, within a reasonable time of the latent defect having become apparent; and
5.1.1.3 none of the events listed in Clause 6.3 apply.
5.2 If the Customer fails to give notice of rejection in accordance with Clause 5.1, it shall be deemed to have accepted these Goods.
5.3 If the Customer gives notice of rejection in accordance with Clause 5.1.1 then the Customer shall be entitled to:
5.3.1 require the Supplier to repair or replace the rejected Goods; or
5.3.2 require the Supplier to repay the price of the rejected Goods in full. Once the Supplier has complied with the Customer’s request, it shall have no further liability to the Customer for the rejected Goods’ failure to comply with Clause 6.3.
5.4 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.5 If the Parties dispute whether any Goods comply with Clause 6.3, either Party may refer the matter for determination in accordance with Clause 30 (Dispute Resolution).
5.6 If the Customer requires that the Goods are returned to the Supplier, the Customer shall contact the Customer Services Team and obtain an authorisation number to arrange the return. If the Customer has received the Goods (or they have been despatched by the Supplier to the Customer) then the Customer must use the authorisation number. In such cases, an Administrative Charge will be made in addition to the collection/return cost. However, if the date, the Supplier received a request to return exceeds one calendar month from when the Goods were delivered , return will not be accepted.
5.7 No attempt should be made to return any Goods without prior authorisation. The Supplier does not accept liability for unsolicited returns.
5.8 A number of items, as identified in the Supplier’s catalogue by a “direct delivery icon”, are made to order and are supplied direct from the manufacturer. In these cases, delivery may take up to 4-6 weeks from date of Order. These items are made to you’re the Customer’s order and are strictly non-cancellable, non-returnable, and nonrefundable.
5.9 If upon receipt, the Goods arrive damaged, incomplete, incorrect or there is a shortage against the quantities specified on the delivery note, notification must be made to us within three Business Days, quoting your customer number, the Order to which the Goods are relating to, the reason for the return and the delivery note number. Any claims made outside this period may not be accepted. In addition, upon delivery please mark the carrier’s documentation with the discrepancy or damage detail.
5.10 Should an expected consignment or part consignment not arrive, notification must be made to the Supplier within ten (10) Business Days of the date of the invoice. Any claims made outside of this period may not be accepted.
5.11 In the circumstance of a refused delivery, we reserve the right to make a Carriage and Package Charge of £4.95 + VAT (£10.00 + VAT for offshore destinations) plus 10% of the order value on all consignments which are refused delivery without justification or due to Customer error.
6. QUALITY OF GOODS
6.1 The Supplier warrants that on delivery (as stated in the Order), and for a period as detailed in the Specification from the date of delivery (“Warranty Period”), the Goods shall:
6.1.1 conform in all material respects with their description;
6.1.2 be free from material defects in design, material and workmanship;
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 Subject to Clause 6.3, if:
6.2.1 during the Warranty Period, the Customer gives notice in writing to the Supplier within twenty-four (24) hours’ of discovery that some or all of the Goods do not comply with the warranty set out in Clause 6.1;
6.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
6.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in Clause 6.1, replace the defective Goods or any part of the defective Goods, or refund the price of the defective Goods in full or part.
6.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in Clause 6.1 if:
6.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with Clause 6.2;
6.3.2 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;
6.3.3 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
6.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
6.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working or environmental conditions; or
6.3.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this Clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 6.1.
6.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in 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.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
7.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in Clause 11.2.2 to Clause 11.2.4; and
7.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to:
7.3.5.1 the Goods; and
7.3.5.2 the ongoing financial position of the Customer.
8. CUSTOMER OBLIGATIONS
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order and any Specification are complete and accurate;
8.1.2 provide the Supplier and its Representatives, in a timely manner and at no charge, with access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier;
8.1.3 have a duty to take reasonable care of the Goods;
8.1.4 where applicable, provide adequate:
8.1.4.1 in-house technical support or after sales team to ensure a diagnosis of any product issue on the Goods can be provided to the end-customer to enable a resolution of any product issue promptly;
8.1.4.2 in-house engineers or evidence of a signed agreement with a Third Party engineer or engineers with appropriate training to promptly carry out any repairs required on Goods;
8.1.5 comply with all Applicable Laws.
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 quoted, the price set out in the Supplier’s published price list as at the date of delivery or deemed delivery;
9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, and applicable duties and taxes which shall be invoiced to the Customer; and
9.1.3 where discounted prices are shown for volume purchases, they are not subject to any further discount arrangements. Only special offers are only available online.
9.2 The Supplier reserves the right to:
9.2.1 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:
9.2.1.1 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);
9.2.1.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
9.2.1.3 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.
9.3 The Supplier shall invoice the Customer on or at any time after the Order is accepted by the Supplier.
9.4 The Customer shall pay each invoice submitted by the Supplier:
9.4.1 within thirty (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
9.4.2 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.
9.5 VAT will be charged at the prevailing rate on all applicable Goods. Website prices are shown as both excluding VAT (where applicable) and including VAT.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of 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 Goods at the same time as payment is due for the supply of the Goods.
9.7 The Customer may pay invoices either by cheque or by BACS. If the Customer wishes to pay by BACS, please contact our Finance Department or email for the relevant bank details.
9.8 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 11, 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 9.8 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 the base rate is below 0%.
9.9 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. WARRANTIES
10.1 Each Party warrants that:
10.1.1 it has full power, authority, capability and resources to carry out the actions contemplated under this Contract;
10.1.2 its entry into and performance under the terms of this Contract will not infringe the Intellectual Property Rights of any Third Party or cause it to be in breach of any obligations to a Third Party.
10.2 Except as expressly provided in this Contract, there are no conditions, warranties or other terms binding on the Parties with respect to the actions contemplated by this Contract. Any condition, warranty or other term in this regard that might otherwise be implied or incorporated into this Contract, whether by statute, common law or otherwise, is, to the extent that it is lawful to do so, excluded by this Contract.
11. LIMITATION OF LIABILITY
11.1 The Supplier has obtained insurance cover in respect of its own legal liability under this Contract. The limits and exclusions in this Clause 11 reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
11.2 References to liability in this Clause 11 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.3 Neither Party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
11.4 Nothing in this Clause 11 shall limit the Customer’s payment obligations under the Contract.
11.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
11.5.1 death or personal injury caused by negligence;
11.5.2 fraud or fraudulent misrepresentation;
11.5.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
11.5.4 defective products under the Consumer Protection Act 1987.
11.6 Subject to Clause 11.3 (No limitation in respect of deliberate default), and Clause 11.5 (Liabilities which cannot legally be limited), the Supplier’s total liability to the Customer:
11.6.1 for damage to property caused by the negligence of its employees and agents in connection with this Contract shall not exceed £5,000,000.00 for any one event or series of connected events; and
11.6.2 for all other loss or damage which does not fall within Clause 11.6.1 shall not exceed the sums payable under the Order in respect of Goods actually supplied by the Supplier, whether or not invoiced to the Customer.
11.7 Subject Clause 11.3 (No limitation in respect of deliberate default), Clause 11.4 (No limitation of customer’s payment obligations) and Clause 11.5 (Liabilities which cannot legally be limited), this Clause 11.7 sets out the types of loss that are wholly excluded:
11.7.1 loss of profits;
11.7.2 loss of sales or business;
11.7.3 loss of agreements or contracts;
11.7.4 loss of anticipated savings;
11.7.5 loss of use or corruption of software, data or information;
11.7.6 loss of or damage to goodwill; and
11.7.7 indirect or consequential loss.
11.8 The Supplier has given commitments as to compliance of the Goods with relevant specifications in Clause 6. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
11.9 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier 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 its having grounds to make a claim in respect of the event and shall expire six (6) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
11.10 This Clause 11 shall survive termination of the Contract.
12. TERMINATION
12.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract by giving the Supplier 30 days’ written notice.
12.2 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:
12.2.1 the other Party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that Party being notified in writing to do so;
12.2.2 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), 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;
12.2.3 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
12.2.4 the other Party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other Party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
12.3 Without affecting any other right or remedy available to it, the Supplier may suspend all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
12.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
12.3.2 the Customer becomes subject to any of the events listed in Clause 12.2.2 to Clause 12.2.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
12.4 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:
12.4.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
12.4.2 there is a Change of Control of the Customer.
13. CONSEQUENCES OF TERMINATION
13.1 On termination or expiry of the Contract:
13.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of 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;
13.1.2 the Customer shall, at its own cost, promptly return any 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 or repossessed, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
14. FORCE MAJEURE
14.1 Provided it has complied with Clause 14.3, if a Party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this 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.
14.2 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.
14.3 The Affected Party shall:
14.3.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than seven (7) 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
14.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
14.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than eight (8) weeks, the Party not affected by the Force Majeure Event may terminate this Contract by giving four (4) weeks’ written notice to the Affected Party.
15. ASSIGNMENT AND OTHER DEALINGS
15.1 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.
15.2 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.
16. CHANGE OF CONTROL
16.1 In the event that there is a Change of Control in relation to either Party, such Party shall to the extent it is permitted to do so by law promptly notify the other Party, together with relevant details, including the identity of the members or group of persons who or which have obtained control of such Party and the actual or potential impacts of such Change of Control on such Party’s obligations under this Contract, including any perceived, actual or potential conflict of interest resulting from such Change of Control.
16.2 The other Party shall be entitled, in its absolute discretion, to give notice of termination of this Contract without incurring any liability (or any rights accruing) to the Party which is the subject of the Change of Control where the Change of Control is materially adverse to the Contract and, following good faith discussions to explore whether any steps could be taken to eliminate or reduce the adverse consequences identified, no reasonable way forward to preserve the participation of the Party that has undergone such Change of Control has been identified or where identified the Party that has undergone the Change of Control fails or refuses to implement the action identified. No Change of Control of a Party in the context of a corporate re-organisation undertaken on a solvent basis, shall give rise to any right for the other Party to give notice of termination without incurring any liability to the Party that has undergone the Change of Control.
17. CONFIDENTIALITY
17.1 Neither Party shall at any time and for a period of two (2) years after termination or expiry of the Contract, disclose to any person any Confidential Information, except as permitted by Clause 17.2.
17.2 Each Party may disclose the other Party’s Confidential Information:
17.2.1 to those of its Representatives who need to know such information for the purposes of carrying out the Party’s obligations under the Contract. Each Party shall ensure that its Representatives, to whom it discloses the other Party’s Confidential Information comply with this Clause 17; and
17.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.3 Neither Party shall use the other Party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
18. NON SOLICITATION
18.1 Each Party agrees that during the term and for six (6) months after the end of the Contract it shall not directly or indirectly solicit, or offer employment or engagement to, any of the other Party’s staff who is at the time of such action or was during a period of six (6) months immediately preceding such action directly involved in the carrying out of any obligations under this Contract without the other Party’s prior written agreement. This Clause shall not apply to recruitment achieved through specific locally or nationally placed advertisements where there has been no direct or targeted contact with the individual concerned or through an unsolicited approach by the individual to that Party.
18.2 If either Party commits any breach of Clause 18.1, the breaching party shall, on demand, pay to the claiming party a sum equal to one (1) year’s basic salary or the annual fee that was payable by the claiming party to that employee, consultant or subcontractor plus the recruitment costs incurred by the claiming party in replacing such person.
19. ENTIRE AGREEMENT
19.1 The Contract constitutes the complete and entire agreement between the Parties on the subject matter of this Contract and (except for any confidentiality agreement) supersedes and extinguishes all promises, assurances, warranties, representations, discussions, proposals, understandings or previous agreements between them, whether oral or written, relating to such subject matter.
19.2 Each Party agrees 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 or negligent misstatement based on any statement in the Contract.
20. VARIATION
Except as set out in these Conditions, no variation or modification of the Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
21. WAIVER
No failure to exercise and no delay in exercising on the part of either Party any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of anyright, power or privilege preclude the enforcement of any other right, power or privilege nor shall the waiver of any breach of any provision herein be taken or held to be a waiver of the provision itself. Any waiver to be effective must be in writing.
22. SEVERANCE
22.1 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 this Contract.
22.2 If any provision or part-provision of this Contract deleted under Clause 22.1 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23. RELATIONSHIP OF THE PARTIES
23.1 Nothing in this Contract shall be taken to create a joint venture, partnership or other similar arrangement; the Parties shall at all times stand in relation to each other as independent contractors. Neither Party is or may hold itself out to any Third Party as being the agent of the other.
23.2 The Parties undertake at all times during this Contract to act reasonably and in good faith to one another.
24. SURVIVAL
24.1 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Contract shall remain in full force and effect.
24.2 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
25. NOTICES
25.1 Any notice or other communication given to a Party under or in connection with the Contract shall be in writing and shall be:
25.1.1 delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
25.1.2 sent by email to the address:
For the Supplier: enquiries@nrs-uk.com;
For the Customer: the email address specified in the Order.
25.2 Any notice or communication shall be deemed to have been received:
25.2.1 if delivered by hand, at the time the notice is left at the proper address;
25.2.2 if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; or
25.2.3 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. In this Clause 25.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
25.3 This Clause 25 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
26. THIRD PARTY RIGHTS
Unless it expressly states otherwise, 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.
27. 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.
28. COMPLAINTS
28.1 Should the Customer wish to formally complain, they should write to the Customer Service Team. The complaint will be promptly acknowledged and should the complaint not be resolved within five (5) Business Days, the Supplier will provide regular feedback until full resolution is reached. If the complaint remains unresolved after such initial period, it shall be escalated in the following order:
(a) first to the account manager of the Supplier;
(b) then, if still unresolved within five (5) Business Days, to the channel manager of the Supplier; and
(c) thereafter, if still unresolved within a further five (5) Business Days, to the managing director of the Supplier.
28.2 If the complaint still remains unresolved after all the escalation levels detailed above, either Party may refer the complaint to dispute resolution in accordance with Clause 29.
29. DISPUTE RESOLUTION
29.1 If a dispute or difference 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 Dispute shall be referred to two (2) representatives: one (1) representative of the Supplier and one (1) representative of the Customer, for negotiation and settlement discussions.
29.2 If the representatives referred to in Clause 31.1 are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, the Dispute shall be referred to a mediator mutually agreed upon by the Parties for non-binding mediation. The costs of the mediation shall be borne equally by the Parties.
29.3 Unless otherwise agreed between the Parties, the mediation shall be held within ninety (90) days of the date of conclusion of negotiations between the representatives of the Parties under Clause 31.2.
29.4 The commencement of mediation shall not prevent the Parties commencing or continuing arbitration in relation to the Dispute under Clause 31.5 which clause shall apply at all times.
29.5 If the Dispute is not resolved through mediation, or either Party fails to participate or to continue to participate in the mediation before the expiration of the period in Clause 31.3, or the mediation terminates before the expiration of the period in Clause 31.3, the Dispute shall be finally resolved by arbitration proceedings in accordance with Clause 31.6 (Arbitration) in this Contract.
29.6 Any dispute, difference or claim arising out of or in connection with this Contract (including any dispute as to the existence, scope, validity or termination of this Contract or of this Clause 31) shall be finally resolved by arbitration at the London Court of International Arbitration (“LCIA”) in London, England conducted in the English language by a sole arbitrator appointed pursuant to the LCIA Arbitration Rules which are deemed to be incorporated by reference into this Clause.
29.7 Unless the Parties expressly agree in writing to the contrary, the Parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by another party in the proceedings not otherwise in the public domain – save and to the extent that disclosure may be required of a Party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority.
29.8 Each of the Parties irrevocably agrees that any order or award made by the arbitrator pursuant to the terms of Clause 31.6 shall be conclusive and binding upon it and may be enforced in the courts of any jurisdiction, insofar as not otherwise permitted by treaty or convention, by suit on the order or award or in any other manner provided by law and the Parties agree to exclude any right of application or appeal to the English Courts in connection with any question of law arising in the course of the arbitration or with respect to any such award.
29.9 Without prejudice to any other rights or remedies that a Party may have, each Party acknowledges and agrees that damages would not be an adequate remedy for any breach of this Contract and accordingly each Party shall be entitled to seek in any court of competent jurisdiction without proof of special damage the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of this Contract.