1. Definitions and interpretation
1.1 In these Conditions the following definitions apply:
Affiliate means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national
Bribery Laws means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010;
Business Day means a day other than a Saturday, Sunday or bank or public holiday
Conditions means the Supplier’s terms and conditions of supply set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to the Training Services, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
Contract means the agreement between the Supplier and the Customer for the supply and purchase of Services incorporating these Conditions and the Order and including all their respective schedules, attachments, annexures and statements of work;
Customer means the named party in the Contract which has agreed to purchase the Services from the Supplier and whose details are set out in the Order;
Data Protection Laws means, as binding on either party or the Services:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Data Protection Supervisory Authority means any regulator, authority or body responsible for administering Data Protection Laws;
Data Subject shall have the meaning given to it in applicable Data Protection Laws from time to time;
Documentation means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Services;
Force Majeure means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements)] preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, pandemic, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);
IPR Claim has the meaning given in clause 11.1;
Location means the address or addresses for performance of the Services as set out in the Order
MSA Offence has the meaning given in clause 8.2.1;
Personal Data Breach shall have the meaning given to it in applicable Data Protection Laws from time to time;
Price has the meaning set out in clause 3.1;
processing has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly);
Processor shall have the meaning given to it in applicable Data Protection Laws from time to time;
Protected Data means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract;
Services means the Training Services set out in the Order and to be performed by the Supplier for the Customer in under the Contract;
Supplier means Minute Mediation Limited a company incorporated and registered in England, United Kingdom with company number 12452493, whose registered address is at Crown House, 27 Old Gloucester Street, London, United Kingdom, WC1N 3AX;
Supplier Personnel means all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time; and
VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);
1.2.2 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.3 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6 a reference to a gender includes each other gender;
1.2.7 words in the singular include the plural and vice versa;
1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
1.2.10 without prejudice to the provisions of clause 14, a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract;
1.2.11 without prejudice to the provisions of clause 14, a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
1.2.12 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2. Application of these conditions
2.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Supplier and the Customer respectively.
2.4 Each Order by the Customer to the Supplier shall be an offer to purchase Services subject to the Contract including these Conditions.
2.5 If the Supplier is unable to accept an Order, it shall notify the Customer in writing as soon as reasonably practicable.
2.6 The offer constituted by an Order shall remain in effect and be capable of being accepted by the Supplier for 15 Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.
2.7 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Services shall arise, until the earlier of:
2.7.1 the Supplier’s written acceptance of the Order; or
2.7.2 the Supplier performing the Services or notifying the Customer that they are ready to be performed (as the case may be).
2.8 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Services and are incapable of being accepted by the Customer.
2.10 Marketing and other promotional material relating to the Services are illustrative only and do not form part of the Contract.
3. Price
3.1 The price for the Services shall be as set out in the Order or, where no such provision is set out, shall be as advised by the Supplier from time to time before the date the Order is placed (the Price).
3.2 The Prices are exclusive of:
3.2.1 insurance, and all other related charges or taxes or describe relevant elements of the services which are not included in the standard price
3.2.2 VAT (or equivalent sales tax).
3.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
3.4 The Supplier may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice in writing.
3.5 Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Services which exceeds 10 percent and which is due to any factor beyond the control of the Supplier.
4. Payment
4.1 The Supplier shall invoice the Customer for the Services in full, at any time following acceptance of the Order.
4.2 The Customer shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and before the commencement of the Services
4.2.2 to the bank account nominated by the Supplier.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.3.1 the Supplier may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of Lloyds Bank Plc from time to time in force, and
4.3.2 interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
5. Your Responsibility
5.1 It is the customers responsibility to ensure that the designated participants will follow the terms of this contract and our training terms and conditions. You shall be liable for the consequences and liabilities of your designated participants’ breach of this contract and our training terms and conditions.
5.2 The customer and your designated participants should comply with the suppliers standards for appropriate behaviour and other applicable laws, regulations, and standards during the Services.
5.3 The customer and your designated participants should comply with the instructions of the supplier’s employees, instructors, and agents. The supplier reserves the right to dismiss, without providing any refund, any participant from any instance of the Services to maintain a productive training environment. In particular, you are not allowed to harass other participants or instructors, or to act inappropriately or disruptively.
5.4 You should ensure that you and your designated participants are in good health and have the prerequisites for the Services.
5.5 It is your responsibility to maintain insurance for yourself and your designated participants. The Supplier and it’s employees, instructors, and agents shall not be responsible for any accident or injury during the Services.
6. Warranty
6.1 The Supplier warrants that at the time of performance, the Services shall:
6.1.1 conform in all material respects to their description and the Specification.
6.1.2 be free from material defects;
6.1.3 be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II s 13; and
6.1.4 in the case of media on which the results of the Services are supplied, be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
6.2 The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.
6.3 As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, remedy, re-perform or refund the Services that do not comply with clause 6.1, provided that:
6.3.1 the Customer serves a written notice on the Supplier not later than five Business Days from performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from performance in the case of latent defects: and
6.3.2 such notice specifies that some or all of the Services do not comply with clause 6.1 and identifies in sufficient detail the nature and extent of the defects; and
6.3.3 the Customer gives the Supplier a reasonable opportunity to examine the claim of the defective Services.
6.4 The provisions of these Conditions shall apply to any Services that are remedied or re-performed with effect from performance of the remedied or re-performed Services.
6.5 Except as set out in this clause 6:
6.5.1 the Supplier gives no warranties and makes no representations in relation to the Services; and
6.5.2 shall have no liability for their failure to comply with the warranty in clause 6.1, and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
7. Anti-bribery
7.1 For the purposes of this clause 7 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
7.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
7.2.1 all of that party’s personnel;
7.2.2 all others associated with that party; and
7.2.3 all of that party’s sub-contractors;
involved in performing the Contract so comply.
7.3 Without limitation to clause 7.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
7.4 The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach or possible breach by the Customer of any of the requirements in this clause 7.
7.5 Any breach of this clause 7 by the Customer shall be deemed a material breach of the Contract that is not remediable and shall entitle the Supplier to immediately terminate the Contract by notice under clause 15.1.1.
8. Anti-slavery
8.1 The Supplier shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.
8.2 The Customer confirms and agrees that:
8.2.1 neither the Customer nor any of its officers, employees, agents or subcontractors has:
(a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
8.2.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;
8.2.3 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the Supplier on request at any time throughout the Contract;
8.2.4 its responses to the Supplier’s modern slavery and human trafficking due diligence questionnaire are complete and accurate; and
8.3 The Customer shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 9.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
8.4 Any breach of clause 9.2 by the Customer shall be deemed a material breach of the Contract and shall entitle the Supplier to terminate the Contract with immediate effect.
9. Indemnity and insurance
9.1 The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
9.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under these Conditions. On request, the Customer shall supply, so far as is reasonable, evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Customer shall on request assign to the Supplier the benefit of such insurance.
10. Limitation of liability
10.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 10.
10.2 Subject to clauses 10.5 and 10.6, the Supplier’s total liability shall not exceed the sum of £1.5 million
10.3 Subject to clauses 10.5 and 10.6, the Supplier shall not be liable for consequential, indirect or special losses.
10.4 Subject to clauses 10.5 and 10.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
10.4.1 loss of profit;
10.4.2 loss of revenue;
10.4.3 loss or corruption of data;
10.4.4 loss or corruption of software or systems;
10.4.5 loss or damage to equipment;
10.4.6 loss of use;
10.4.7 loss of production;
10.4.8 loss of contract;
10.4.9 loss of commercial opportunity;
10.4.10 loss of savings, discount or rebate (whether actual or anticipated);
10.4.11 harm to reputation or loss of goodwill; and/or
10.4.12 wasted expenditure.
10.5 The limitations of liability set out in clauses 10.2 to 10.4 shall not apply in respect of any indemnities given by either party under the Contract.
10.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
10.6.1 death or personal injury caused by negligence;
10.6.2 fraud or fraudulent misrepresentation;
10.6.3 any other losses which cannot be excluded or limited by Applicable Law;
10.6.4 any losses caused by wilful misconduct.
11. Intellectual property
11.1 The Supplier shall indemnify the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that performance of benefit of the Services infringes the Intellectual Property Rights of any third party (IPR Claim), provided that the Supplier shall have no such liability if the Customer:
11.1.1 does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
11.1.2 makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;
11.1.3 does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;
11.1.4 does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;
11.1.5 does not, at the Supplier’s request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer;
11.1.6 uses the Services in combination with any other goods or services, which without such combination, no IPR Claim could or would have been made.
11.2 If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:
11.2.1 procure for the Customer the right to continue receiving the benefit of the relevant Services; or
11.2.2 modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement, provided the Services remain in material conformance to their Specification.
11.3 The Supplier’s obligations under clause 11.1 shall not apply to Services modified or used by the Customer other than in accordance with the Contract or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use.
12. Confidentiality and announcements
12.1 The Customer shall keep confidential all Confidential Information of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
12.1.1 any information which was in the public domain at the date of the Contract.
12.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement.
12.1.3 any information which is independently developed by the Customer without using information supplied by the Supplier; or
12.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract
except that the provisions of clauses 12.1.1 to 12.1.3 shall not apply to information to which clause 12.4 relates.
12.2 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.
12.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
12.4 To the extent any Confidential Information is Protected Data (as defined in clause 13) such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 13.1.
13. Processing of personal data
13.1 The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
13.2 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
13.3 The Customer shall indemnify and keep indemnified the Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 13.
13.4 The Supplier shall:
13.4.1 only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with the schedule and the Contract (including when making any transfer to which clause 13.10 relates), except to the extent:
(a) that alternative processing instructions are agreed between the parties in writing; or
(b) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
13.4.2 without prejudice to clause 13.1, if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
13.5 The Supplier shall:
13.5.1 not permit any processing of Protected Data by any Sub-Processor without the prior specific written authorisation of the Customer;
13.5.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 13 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;
13.5.3 remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
13.5.4 ensure that all natural persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
13.6 The Customer authorises the appointment of the Sub-Processors listed in the schedule.
13.7 The Customer shall reply to any communication from the Supplier requesting any further prior specific authorisation of a Sub-Processor pursuant to clause 13.6.1 promptly and in any event within 10 Business Days of request from time to time. The Customer shall not unreasonably withhold, delay or condition any such authorisation.
13.8 The Supplier shall (at the Customer’s cost):
13.8.1 assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to the Supplier; and
13.8.2 taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
13.9 The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Customer.
13.10 The Supplier shall at the Customer’s cost and expense as soon as reasonably practicable refer to the Customer all requests it receives for exercising any Data Subjects’ rights under Chapter III of the GDPR which relate to any Protected Data. It shall be the Customer’s responsibility to reply to all such requests as required by applicable law.
13.11 The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 13 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of [one] audit request in any 12 month period under this clause 13.12).
13.12 The Supplier shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
13.13 On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to store such Protected Data. This clause 13 shall survive termination or expiry of the Contract.
14. Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 10 days, either party may terminate the Contract by written notice to the other party.
15. Termination
15.1 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if:
15.1.1 the Customer commits a material breach of Contract and such breach is not remediable;
15.1.2 the Customer commits a material breach of the Contract which is capable of being remedied and such breach is not remedied within 14 days of receiving written notice of such breach;
15.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after the Supplier has given notification that the payment is overdue; or
15.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
15.2 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
15.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
15.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
15.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
15.2.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
15.2.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
15.2.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
15.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
15.2.8 has a resolution passed for its winding up;
15.2.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
15.2.10 suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
15.2.11 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within [seven] days of that procedure being commenced;
15.2.12 has a freezing order made against it;
15.2.13 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; OR.
15.2.14 is subject to any events or circumstances analogous to those in clauses 15.2.1 to 15.2.13 in any jurisdiction; OR.
15.2.15 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 15.2.1 to 15.2.14 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
15.3 The Supplier may terminate the Contract any time by giving not less than four weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
15.4 The right of the Supplier to terminate the Contract pursuant to clause 15.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.
15.5 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 15, it shall immediately notify the Supplier in writing.
15.6 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
16. Notices
16.1 Any notice or other communication given by a party under these Conditions shall:
16.1.1 be in writing and in English;
16.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
16.1.3 be sent to the relevant party at the address set out in the Contract
16.2 Notices may be given, and are deemed received:
16.2.1 by hand: on receipt of a signature at the time of delivery;
16.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
16.2.3 by Royal Mail International Tracked & Signed OR Royal Mail International Signed post: at 9.00 am on the fourth Business Day after posting; and
16.2.4 by fax: on receipt of a transmission report from the correct number confirming uninterrupted and error-free transmission; and
16.2.5 by email provided confirmation is sent by first class post: on receipt of a delivery OR read receipt email from the correct address.
16.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 16.1 and shall be effective:
16.3.1 on the date specified in the notice as being the date of such change; or
16.3.2 if no date is so specified, four Business Days after the notice is deemed to be received.
16.4 All references to time are to the local time at the place of deemed receipt.
16.5 This clause does not apply to notices given in legal proceedings or arbitration.
16.6 A notice given under these Conditions is not validly served if sent by email.
17. Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
18. Time
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
19. Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
20. Entire agreement
20.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
20.2 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
20.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
21. Variation
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
22. Assignment
22.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed.
22.2 Notwithstanding clause 23.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives the Supplier prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
23. Set off
23.1 The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.
23.2 The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
24. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
25. Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
26. Severance
26.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
26.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
27. Waiver
27.1 No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
27.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
27.3 A waiver of any term, provision, condition or breach of the Contract by the Supplier shall only be effective if given in writing and signed by the Supplier, and then only in the instance and for the purpose for which it is given.
28. Compliance with law
The Customer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
29. Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions and of Part B and Part C of the schedule shall prevail to the extent of the conflict.
30. Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
31. Third party rights
31.1 Except as expressly provided for in clause 32.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
31.2 Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
32. Dispute resolution
32.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 33.
32.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
32.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
32.3.1 Within five Business Days of service of the notice, the contract managers of each of the parties shall meet to discuss the dispute and attempt to resolve it.
32.3.2 If the dispute has not been resolved within 14 Business Days of the first meeting of the contract managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority) of each of the parties. The chief executives (or equivalent) shall meet within 30 Business Days to discuss the dispute and attempt to resolve it.
33 ‘If any dispute arises in connection with this agreement, and the parties fail to settle by direct negotiation the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure and the mediation will start, unless otherwise agreed by the parties, within 28 days of one party issuing a request to mediate to the other. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
34 The mediation will take place in London, United Kingdom and the language of the mediation will be English. The Mediation Agreement referred to in the Model Procedure shall be governed by and construed and take effect in accordance with the substantive law of England and Wales.
35 If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, the dispute shall be referred to and finally resolved by arbitration. CEDR shall be the appointing body and administer the arbitration.
36 CEDR shall apply the UNCITRAL rules in force at the time arbitration is initiated. In any arbitration commenced pursuant to this clause, the number of arbitrators shall be 1 and the seat or legal place of arbitration shall be London, England.’
37. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
38. Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).