Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Call-Off Goods: Goods shipped by CPL in response to a Call-Off Request.
Call-Off Confirmation: CPL’s confirmation setting out the quantity of Goods shipped/made available for collection, the price of those Goods and the specific terms for delivery/collection of the Goods.
Call-Off Request: the Customer’s request for Goods to be shipped to the Customer or made available for collection by the Customer (or its nominated representative).
Collection Location: CPL’s premises or such other location as may be advised by CPL.
CPL: Chess Plastics Limited (registered in England and Wales with company number 00931102).
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 17.11.
Contract: the contract between CPL and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from CPL.
Customer Intellectual Property Rights: the trade marks and Intellectual Property Rights of which the Customer is the owner or licensee and which are disclosed, licensed or provided to CPL pursuant to the Contract.
Delivery Location: the location set out in the Order or such other location as the parties may agree.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control including (without limitation) acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, 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, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on the existence of the Force Majeure Event, or companies in the same group as that party), non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on the existence of the Force Majeure Event) and interruption or failure of utility service.
Goods: the goods (or any part of them) set out in the Order.
Incoterms: the international rules for the interpretation of trade terms of the International Chamber of Commerce as are in force at the date when the Contract is entered into.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Materials: all forms, manuals, records, artwork and other documents and materials provided by the Customer to CPL in connection with the Contract.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form or otherwise submitted by email, the Customer’s written acceptance of CPL’s quotation, or overleaf, as the case may be.
Specification: the specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and CPL.
Tooling: tooling, dies, jigs, drills, moulds, presses, vessels, tools and machinery, and related items.
- A reference to:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- legislation or a legislative provision is a reference to it as amended or re-enacted and will include all subordinate legislation made under that legislation or legislative provision;
- any words following the terms including, include or in particular or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms;
- writing or written includes email but not fax.
- Basis of Contract
- These Conditions apply in all circumstances when CPL and the Customer are trading with each other in the course of their respective businesses.
- 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.
- The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and the Specification are complete and accurate.
- The Order will only be deemed to be accepted when CPL issues a written acceptance of the Order, at which point the Contract will come into existence.
- 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.
- Any samples, drawings, descriptive matter or advertising produced by CPL and any descriptions or illustrations contained in CPL’s catalogues or brochures or on CPL’s website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They will not form part of the Contract nor have any contractual force.
- A quotation for the Goods given by CPL will not constitute an offer. All quotations are subject to availability of and cost to CPL of Goods and may be withdrawn or amended by CPL at any time.
- The parties will use reasonable endeavours to agree the Specification.
- If the parties cannot agree the Specification, without prejudice to any other rights or remedies CPL may have, CPL may cancel the Customer’s Order without liability. The Customer will pay CPL on a time and materials basis fair and reasonable compensation for any work in progress on or in relation to the Goods at the time of termination and management time incurred by CPL in relation to that Order prior to the time of termination including (without limitation) the cost of any Goods already purchased or commissioned for manufacture, but whilst such compensation will not include loss of profits in relation anything which CPL would have done under the Contract had this not been terminated, it is agreed that CPL will be entitled to its usual margin on all work it has carried out up to termination.
- It is the Customer’s responsibility to ensure that all measurements, plans, drawings and designs it provides and which form part of the Specification are accurate, complete and fit for the intended purpose.
- The Customer will provide CPL with all items (including (without limitation) Tooling and Materials) which are required by CPL for the manufacture of the Goods.
- The Tooling remains the absolute property of the Customer.
- CPL will not part with possession of the Tooling, or make it available, to any third party.
- Whilst the Tooling is in the possession of CPL:
- the Customer have the sole risk of loss or damage to the Tooling;
- the Customer will maintain, with a reputable insurance company, insurance cover for any loss or damage to the Tooling;
- the Customer will reimburse CPL for the reasonable costs of any repair or replacement of the Tooling, except to the extent necessitated by a default on the part of CPL.
- The Goods are described in the Specification.
- To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer will indemnify CPL against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by CPL arising out of or in connection with any claim made against CPL for:
- actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with CPL’s use of the Specification; or
- personal injury, loss or damage to property arising from the use of the Goods except to the extent that such injury, loss or damage is solely attributable to the negligence or default of CPL or CPL’s employees or agents.
- Clause 2 will survive termination of the Contract.
- If required by any applicable statute, regulation or law, CPL reserves the right to amend the Specification for the purposes of achieving compliance or to cease working on an Order if required. In these circumstances, to the extent legally possible, CPL will raise any such issue promptly with the Customer and the parties will work together using reasonable endeavours to agree a solution, including an amended Specification if necessary. CPL reserves the right to increase the price of the Goods if any such solution or amendment to the Specification results in increased costs to CPL.
- Any advice or recommendations given by CPL or its employees or agents relating to the suitability of the Goods is supplied in good faith but the Customer must satisfy itself that the Goods are suitable for the intended purpose.
- Call-Off Goods
- If CPL’s acceptance of the Customer’s Order pursuant to clause 4 confirms that the Goods will be delivered (or made available for collection) by instalments pursuant to Call-Off Requests, this clause 6 will apply.
- Following receipt of a Call-Off Request, CPL will issue to the Customer a Call-Off Confirmation.
- CPL may invoice the Customer based on that Call-Off Confirmation on or at any time after the completion of delivery/collection of the Call-Off Goods.
- If during the period stated in CPL’s acceptance of the Customer’s Order pursuant to clause 4 or the period of 6 months from the date of CPL’s acceptance of the Customer’s Order pursuant to clause 2.4 (whichever period is shorter) (Call-Off Period), the Customer has not submitted a Call-Off Request in relation to all Goods ordered pursuant to the Customer’s Order, CPL will:
- issue a Call-Off Confirmation for any remaining Goods not subject to a Call-Off Request on expiry of the Call-Off Period;
- deliver the Goods to the Customer or make them available for collection (at CPL’s election); and
- raise an invoice for those Goods.
- The Customer will pay invoices raised by CPL pursuant to this clause 6 in accordance with clause 11.
- During the Call-Off Period, the Customer will give CPL not less than 5 days before the beginning of each month, a forecast (in writing) of the Goods it expects to submit a Call-Off Request in relation to during the 3 months following that month. The Customer will act in good faith when forecasting its requirements pursuant to this clause 6.
- Delivery and Collection
- If CPL’s acceptance of the Customer’s Order given pursuant to clause 4 confirms that Incoterms will apply to the Order, the relevant stated Incoterm will apply. In that case, if there is any conflict between the Contract and Incoterms, Incoterms will prevail to the extent required to resolve the conflict.
- CPL reserves the right at any time to refuse to make delivery of the Goods if in its sole opinion the storage and offloading facilities proposed by the Customer are unsafe or inadequate for the Goods. All reasonable costs incurred by CPL in attempting to make delivery in these circumstances will be for the account of the Customer. Delivery of the Goods by CPL or CPL’s agent for such delivery will in no way constitute a commitment or representation by CPL as to the suitability of the Customer’s storage or offloading facilities.
- If CPL requires the Customer to return any packaging materials to CPL, it will notify the Customer. The Customer will return packaging materials at such times and in such manner as CPL will reasonably request. Returns of packaging materials will be at the Customer’s expense unless otherwise agreed. If the return of packaging material is not required by CPL, CPL will charge the Customer for the cost of the packaging material in addition to the price of the Goods.
- It is the Customer’s responsibility to check that the Goods delivered by CPL/made available for collection match the Goods ordered before putting such Goods to use. CPL will not be responsible for any liabilities, costs, expenses, damages or losses incurred by the Customer if the Customer does not check the Goods in this way. In the event of an inconsistency between the Goods (as ordered) and the goods actually delivered/collected (e.g. the wrong products are delivered or made available for collection), the Customer will notify CPL immediately on discovery and CPL will contact the Customer to arrange re-delivery/collection of the Goods as soon as reasonably practicable following notification of the inconsistency. The incorrect goods will be collected by or returned to CPL (at CPL’s option) at CPL’s cost and the Customer will co-operate with CPL in this respect.
- It is the Customer’s responsibility to check that the Goods delivered by CPL/made available for collection:
- meet all applicable required standards including (without limitation) the Customer’s requisite quality standards; and
- are fit for purpose,
before putting such Goods to use. CPL will not be responsible for any liabilities, costs, expenses, damages or losses incurred by the Customer if the Customer does not check the Goods in this way.
- If CPL’s acceptance of the Customer’s Order given pursuant to clause 4 confirms that CPL will deliver the Goods to the Customer:
- CPL will ensure that each delivery of the Goods is accompanied by a delivery note;
- CPL will deliver the Goods to the Delivery Location;
- the risk in the Goods will pass to the Customer on completion of delivery; and
- delivery is completed on the completion of the unloading of the Goods at the Delivery Location.
- If CPL’s acceptance of the Customer’s Order given pursuant to clause 4 confirms that the Customer will collect the Goods:
- CPL will make available to the Customer a delivery note;
- the Customer will collect the Goods from the Collection Location within 5 Business Days of CPL notifying the Customer that the Goods are ready for collection;
- the risk in the Goods will pass to the Customer on collection; and
- collection is completed on the completion of loading of the Goods at the Collection Location.
- Any dates quoted for delivery/collection of Goods are approximate only, and the time of delivery/collection is not of the essence. CPL will not be liable for any delay in delivery or collection of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide CPL with adequate delivery instructions or any other instructions or information that are relevant to the supply of the Goods.
- If the Customer wishes to change a pre-agreed delivery/collection date then it must give CPL 72 hours’ notice. The Customer will pay CPL’s costs in connection with such a request including (without limitation) storage and re-delivery costs.
- If CPL fails to deliver the Goods or make the Goods available for collection, its liability will be limited to refunding all amounts which the Customer has paid to CPL in respect of such Goods.
- If the Customer fails to take or accept delivery of the Goods within 5 Business Days of CPL notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or CPL’s failure to comply with its obligations under the Contract:
- delivery/collection of the Goods will be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which CPL notified the Customer that the Goods were ready for delivery/collection; and
- CPL will store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
- If 10 Business Days after the day on which CPL notified the Customer that the Goods were ready for delivery or collection the Customer has not taken or accepted delivery of them, CPL may resell or otherwise dispose of part or all of the Goods.
- CPL may deliver the Goods or make the Goods available for collection by instalments, which will be invoiced and paid for separately. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
- Overseas Delivery
CPL may at its discretion agree to deliver Goods to addresses outside of the United Kingdom. However, there are restrictions on some Goods for certain international delivery destinations and it is the Customer’s responsibility to ascertain information about the existence and applicability of such restrictions. If the Customer orders Goods for delivery outside of the United Kingdom, that order may be subject to import duties and taxes which are applied when the delivery reaches that destination. CPL has no control over these charges and cannot predict their amount. The Customer will be responsible for payment of any such import duties and taxes. The Customer must comply with all applicable laws and regulations of the country for which the Goods are destined. CPL will not be liable or responsible if the Customer breaks any such law.
- CPL warrants that on delivery/collection the Goods will conform in all material respects with the Specification.
- Subject to clause 3, if:
- the Customer gives notice in writing to CPL within 5 days of delivery or collection (and within 24 hours of delivery or, as the case may be collection, if the alleged defect is apparent on visual inspection) that some or all of the Goods do not comply with the warranty in clause 1;
- CPL is given a reasonable opportunity of examining such Goods; and
- the Customer (if asked to do so by CPL) returns such Goods to CPL’s place of business at the Customer’s cost,
CPL will, at its option, repair or replace any Goods it agrees are defective.
- CPL will not be liable for the Goods’ failure to comply with the warranty set out in clause 1 if:
- the Customer makes any further use of such Goods after giving notice in accordance with clause 2;
- the defect arises because the Customer failed to follow CPL’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
- the defect arises as a result of CPL following any drawing, design or Specification supplied by the Customer;
- the Customer alters or repairs such Goods without the written consent of CPL;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- Except as provided in this clause 9, CPL will have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 1.
- 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.
- These Conditions will apply to any repaired or replacement Goods supplied by CPL.
- Title and Risk
- Title to the Goods will not pass to the Customer until the earlier of:
- CPL receiving payment in full (in cash or cleared funds) for the Goods and any other goods that CPL has supplied to the Customer in respect of which payment has become due, in which case title to the Goods will pass at the time of payment of all such sums; and
- the Customer reselling the Goods, in which case title to the Goods will pass to the Customer at the time specified in clause 3.
- Until title to the Goods has passed to the Customer, the Customer will:
- store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as CPL’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- notify CPL immediately if it becomes subject to any of the events listed in clause 1.2 to clause 16.1.4; and
- give CPL such information as CPL may reasonably require from time to time relating to:
- the Goods; and
- the ongoing financial position of the Customer.
- Subject to clause 4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before CPL receives payment for the Goods. However, if the Customer resells the Goods before that time:
- it does so as principal and not as CPL’s agent; and
- title to the Goods will pass from CPL to the Customer immediately before the time at which resale by the Customer occurs.
- At any time before title to the Goods passes to the Customer, CPL may:
- by notice in writing, terminate the Customer’s right under clause 3 to resell the Goods or use them in the ordinary course of its business; and
- require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
- Title to the Goods will not pass to the Customer until the earlier of:
- Price and Payment
- The price of the Goods will be the price set out in CPL’s written acceptance of the Customer’s Order given pursuant to clause 4, or, if no price is quoted, the price set out in CPL’s published price list in force as at the date of delivery/collection.
- CPL may, by giving notice to the Customer at any time before delivery/collection, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
- any factor beyond CPL’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any request by the Customer to change the delivery/collection date(s), quantities or types of Goods ordered, or the Specification; or
- any delay caused by any instructions of the Customer or failure of the Customer to give CPL adequate or accurate information or instructions.
- If CPL increases the price of the Goods before delivery/collection pursuant to clause 2, CPL will have no obligation to deliver the Goods or make the Goods available for collection until the Customer has submitted a new written Order for the Goods to CPL clearly showing the amended price.
- The price of the Goods excludes:
- amounts in respect of value added tax (VAT), which the Customer will additionally be liable to pay to CPL at the prevailing rate, subject to the receipt of a valid VAT invoice;
- all applicable consular charges, stamp duties, export or import duties, purchase tax or similar fiscal demands (UK or otherwise), bank charges and interest charges; and
- the costs and charges of packaging, insurance and transport of the Goods, which will be invoiced to the Customer.
- CPL may invoice the Customer for the Goods on or at any time after the completion of delivery/collection.
- The Customer will pay each invoice submitted by CPL:
- in GBP within 30 days of the date of the invoice or in accordance with any credit terms agreed by CPL and confirmed in writing to the Customer; and
- in full and in cleared funds to a bank account nominated in writing by CPL, and
time for payment will be of the essence of the Contract.
- If the Customer fails to make any payment due to CPL under the Contract by the due date for payment, then the Customer will pay interest on the overdue amount at the greater of 5% per annum above the Bank of England’s base rate from time to time and the High Court judgment rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer will pay the interest together with the overdue amount.
- All amounts due under the Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- Intellectual Property
- Subject to clause 2, the Customer will not receive any Intellectual Property Rights in the Goods by virtue of the Contract save for a non-exclusive, non-transferable, royalty-free licence to use the Goods for the purposes of its business.
- CPL acknowledges that the Customer Intellectual Property Rights are and remain the exclusive property of the Customer or, where applicable, the third party licensor from whom the Customer derives the right to use them.
- The Customer acknowledges that all Intellectual Property Rights used for the manufacture of the Goods that originate from CPL will remain the exclusive property of CPL or, where applicable, the third party licensor from whom CPL derives the right to use them.
- The Customer grants to CPL a non-exclusive, transferable, royalty-free licence (including the right to grant sub-licences to permitted subcontractors) to use the Customer Intellectual Property Rights, the Tooling and the Materials for the purpose of performing its obligations and exercising its rights under the Contract.
- The Customer will indemnify CPL against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other reasonable professional costs and expenses) suffered or incurred by CPL arising out of or in connection with any claim made against CPL for actual or alleged infringement of a third party’s Intellectual Property Rights or moral rights arising out of or in connection with the use of the Customer Intellectual Property Rights, the Tooling or the Materials in accordance with the Contract.
- Product Liability
If any claim is made against CPL arising out of or in connection with the sale or use of the Goods by the Customer or persons to whom the Customer has supplied the Goods (other than claims arising out of or in connection with the manufacture of or any defect in the Goods), the Customer will indemnify CPL against all damages or other compensation awarded against CPL in connection with the claim or paid or agreed to be paid by CPL in settlement of the claim and all legal or other expenses incurred by CPL in or about the defence or settlement of the claim.
- Data Protection
Each party will, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including (i) the Data Protection Act 2018 and any successor UK legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK). Each party will ensure that it has all necessary consents and notices in place to enable the lawful transfer of personal data to the other for the purposes of each party fulfilling its obligations under the Contract. Neither party will use or disclose personal data provided to it by the other in connection with the Contract other than for the purpose of fulfilling the Contract.
- Limitation of Liability
- The restrictions on liability in this clause 15 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- defective products under the Consumer Protection Act 1987.
- Subject to clause 2, CPL’s total liability to the Customer will not exceed the price of the Goods.
- Subject to clause 2, the following types of loss are wholly excluded by CPL:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
- This clause 15 will survive termination of the Contract.
- Without limiting its other rights or remedies, CPL may terminate the Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
- the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
- Without limiting its other rights or remedies, CPL may suspend provision of the Goods under the Contract or any other contract between the Customer and CPL if:
- the Customer becomes subject to any of the events listed in clause 1.2 to clause 16.1.4, or CPL reasonably believes that the Customer is about to become subject to any of them; or
- the Customer fails to pay any amount due under the Contract on the due date for payment.
- Without limiting its other rights or remedies, CPL may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
- On termination or expiry of the Contract for any reason the Customer will immediately pay to CPL all of CPL’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, CPL will submit an invoice, which will be payable by the Customer immediately on receipt. CPL may retain possession of the Tooling and Materials and any other items in its possession belonging to the Customer until such time as the Customer has complied with this clause 4.
- Termination or expiry of the Contract, however arising, will not affect any of the parties’ rights and remedies that have accrued as at 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.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract will remain in full force and effect.
- Without limiting its other rights or remedies, CPL may terminate the Contract with immediate effect by giving written notice to the Customer if:
- Dispute resolution.
- An Expert is a person appointed in accordance with this clause 1.1 to resolve any disagreement between the parties as to whether the Goods comply with the warranty at clause 9.1. Where under the Contract a party wishes to refer a matter to an Expert, the parties will first agree on the appointment of an independent Expert and agree with the Expert the terms of his appointment. If the parties are unable to agree on an Expert or the terms of the Expert’s appointment within 7 days of either party serving details of a suggested expert on the other, either party will then be entitled to request the Centre for Effective Dispute Resolution (CEDR) to appoint a suitable and appropriate Expert with the required expertise. The Expert is required to prepare a written decision including reasons and give notice of the decision to the parties within a maximum of 3 months of the matter being referred to the Expert. If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required, then either party may apply to CEDR to discharge the Expert and to appoint a replacement Expert with the required expertise and this clause 17.1.1 will apply to the new Expert as if they were the first Expert appointed. Each party will with reasonable promptness supply each other with all information and give each other access to all documents, personnel and things as the other party may reasonably require to make submissions to the Expert. The Expert will act as an expert and not as an arbitrator. The Expert will determine the matters referred to the Expert under the Contract. The Expert’s written decision on the matters referred to the Expert will be final and binding on the parties in the absence of manifest error or fraud. All matters concerning the process and result of the determination by the Expert will be kept confidential among the parties and the Expert. Each party will act reasonably and co-operate to give effect to the provisions of this clause 17.1.1 and otherwise do nothing to hinder or prevent the Expert from reaching their determination. The Expert and CEDR will have no liability to the parties for any act or omission in relation to this appointment, save in the case of bad faith.
- If any other dispute arises in connection with the Contract or these Conditions, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party the dispute, referring the dispute to mediation. If there is any point on the logistical arrangements of the mediation, other than nomination of the mediator, upon which the parties cannot agree within 14 days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the parties having consulted with them. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR notice.
- For the avoidance of doubt, clause 1 will not prevent CPL from immediately initiating court proceedings to seek any interim relief (including injunctive relief) or take advantage of any applicable time limitation.
- Confidentiality. Each party undertakes that it will not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by this clause 2. Each party may disclose the other party’s confidential information (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 17.2. No party will use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
- Force Majeure. CPL will not be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure Event. In such circumstances, CPL will be entitled to a reasonable extension of the time for performing such obligations.
- Assignment and other dealings. CPL 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. The Customer will 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 CPL.
- Any notice or other communication given to a party under or in connection with the Contract will be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause 17.5, and will be delivered personally, sent by pre-paid first class post or other next working day delivery service or commercial courier. A notice or other communication will be deemed to have been received: if delivered personally, when left at the address referred to in this clause 17.5; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting and if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. The provisions of this clause 17.5 will not apply to the service of any proceedings or other documents in any legal action.
- If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.6 the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
- A waiver of any right or remedy under the Contract or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law will prevent or restrict the further exercise of that or any other right or remedy.
- No partnership or agency. Nothing in the Contract is intended to, or will be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
- Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on, and will 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 will have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract. Nothing in this clause 9 will limit or exclude any liability for fraud.
- 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.
- Except as set out in these Conditions, no variation of the Contract will be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
- Governing law and Jurisdiction. 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 will be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
- Dispute resolution.
TERMS AND CONDITIONS OF PURCHASE
Contained within our standard Purchase Agreement.