Energystore Ltd – Terms & Conditions of Sale
1. Definitions & Interpreations
1.1. In these Conditions the following definitions apply:
Affiliate: any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Business Customer: a person who is acting in connection with its trade, business, craft or profession.
Business Day: a day, other than a Saturday, Sunday or public holiday in Northern Ireland, when banks in Belfast are open for business.
Conditions: the Supplier’s terms and conditions of sale set out in this document as amended from time to time.
Consumer: a natural person who is acting for purposes unrelated to the person’s trade, business or profession.
Contract: the contract between the Supplier and the Customer for the supply of the Goods or Services or Goods and Services incorporating these Conditions, the Pricing Offer and the Order, and including all their schedules, attachments, annexures.
Control: has the meaning given to it in section 1124 of the Corporation Tax Act 2010.
Customer: the person or firm as specified in the Order who agrees to purchase the Goods or Services or Goods and Services from the Supplier and to whom the Supplier agrees to sell the Goods or Services or Goods and Services.
Force Majeure Event: means any circumstance not within a party's reasonable control including, without limitation, strikes, acts of God, extreme weather conditions or natural disasters, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, nuclear, chemical or biological contamination or sonic boom, collapse of buildings, fire, explosion or accident, non-performance by suppliers or subcontractors, interruption or failure of utility service.
Goods: materials or products manufactured and/or supplied by the Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, 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.
Order: the Customer's order for the supply of Goods or Services or Goods and Services (as applicable), as set out in the email, phone call or text message received by the Supplier.
Plot: an individual property included under a Plot Call Off Order.
Plot Call Off Order: an arrangement pursuant to which the Supplier shall provide the Services to the Customer for a number of different properties within close proximity.
Pricing Offer: the price offered by the Supplier and accepted by the Customer in writing at the start of the account opening for the Goods, or as otherwise agreed between the Supplier and Customer in writing.
Services: the services set out in the Order and to be supplied by the Supplier to the Customer in accordance with the Contract.
Supplier: Energystore Limited, a private company limited by shares incorporated and registered in Northern Ireland with company number NI010197 whose registered office is at 21-23 Shore Road, Holywood, County Down, BT18 9HX.
VAT: value added tax chargeable in the UK.
1.2. In these Conditions, unless the context otherwise requires:
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. clause, schedule and paragraph headings shall not affect the interpretation of these Conditions;
1.2.3. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.4. a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.5. words in the singular shall include the plural and in the plural shall include the singular;
1.2.6. a reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision;
1.2.7. a reference to writing or written includes email but not fax; and
1.2.8. 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.
1.3. If the Customer has any questions in relation to these Conditions or on any Order, they should contact the Supplier by sending an email to info@energystoreltd.com.
1.4. By law the Supplier must give the Customer, where the Customer is a Consumer, certain key information before a legally binding contract between the Supplier and the Customer is made. The Customer can find everything it needs to know about the Supplier and its products on the Supplier’s website or from the Supplier’s staff. The Supplier will give this information to a Customer (who is a Consumer) in a clear and understandable way. The key information the Supplier gives to the Customer by law forms part of the Contract (as though it is set out in full under the Conditions).
1.5. If there is any change to the key information once a legally binding contract is entered into between the Supplier and the Customer, these changes can only be made if the Customer agrees to it.
2. Ordering Good & Services
2.1. The Order constitutes an offer to purchase Goods or Services or Goods and Services in accordance with these Conditions.
2.2. The Order shall only be deemed to be accepted when the Supplier accepts the Order either verbally or in writing or (if earlier) the Supplier starts to provide the Services, at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3. The Supplier may issue quotations to the Customer from time to time. Any quotation are invitations to treat only. They are not an offer to supply Goods and/or Services and are incapable of being accepted by the Customer.
2.4. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.
2.5. 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.
2.6. 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.
2.7. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.8. 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.
3. Delivery of Goods
3.1. The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
3.2. The Goods shall be delivered by the Supplier, or its nominated carrier, to the location as set out in the Order or such other location as the parties may agree or, alternatively, the Customer may collect the Goods from the Supplier’s premises or such other location as the parties may agree (the “Delivery Location”) on the date confirmed by the Supplier when accepting an Order or such other date as the parties may agree (the “Delivery Date”).
3.3. Delivery of the Goods shall be completed on completion of the unloading or loading (as applicable) of the Goods at the Delivery Location.
3.4. Time is not of the essence in relation to the performance of the Services or delivery of the Goods. The Supplier shall use its reasonable endeavours to meet the Delivery Date, but the Delivery Date is indicative only.
3.5. 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.
3.6. If the Customer fails to take or accept delivery of the Goods within two Business Days of the Delivery Date, 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:
3.6.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the second Business Day following the Delivery Date; and
3.6.2. the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.7. If five Business Days after the Delivery Date the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.
3.8. If the Order is a Plot Call Off Order, the Supplier may provide the Services 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.
4. Returns & Refunds
4.1. This clause 4 shall only apply to a Customer who is a Consumer.
4.2. Notwithstanding anything else within these Conditions, a Customer which is a Consumer may cancel their Contract within 14 days of the date on which the Contract was formed (the “Cancellation Period”) and receive a refund of the amount paid to the Supplier for the relevant Goods and/or Services. However, a Customer does not have the right to cancel if such Customer has requested for the Supplier to start providing the Services during the Cancellation Period and the Services are fully performed (i.e. the work is completed) during this period.
4.3. To cancel a Contract the Customer (being a Consumer) must contact the Supplier by email (at info@energystoreltd.com) within the Cancellation Period and the Supplier will acknowledge receipt by return email. The Supplier will inform the Customer of any refund due to the Customer within five working days of receipt of the email from the Customer. Any refund due to the Customer (being a Consumer) shall be made promptly following cancellation under clause 4.1, save where the Goods have been delivered to the Customer prior to such cancellation, in which case refund shall be made promptly following the safe return of the relevant Goods (undamaged) to the Supplier.
4.4. In the event that the Goods are returned to the Supplier in a damaged or defective state (and provided that such damage or defect was not attributable to the Supplier and had not been notified to the Supplier in writing within 48 hours of arrival of delivery of the Goods), the Supplier shall be entitled to deduct from any refund due to the Customer the amount required to restore the relevant damaged Goods to their original undamaged or non-defective state.
4.5. If the Customer receives the Goods before deciding to cancel the Contract, the Customer must return the Goods to the Supplier without undue delay and no later than 14 days after the Customer decides to cancel in accordance with this clause 4. The Customer must contact the Supplier’s customer service team who will provide full details of the procedure for return of Goods and the costs associated with such return (which shall be borne by the Customer).
4.6. If the Customer requested that the Supplier start providing services during the Cancellation Period, on cancellation of the Contract, the Supplier must pay to the Customer:
4.6.1. for the Services provided by the Supplier up to the time that the Customer told the Supplier that they wanted to cancel the Contract, which will be an amount in proportion to the Services performed up to that point in comparison with the full price under the Contract; or
4.6.2. the full price under the Contract, if the Customer lost their right to cancel the Contract because the Services were fully performed (i.e. the work was completed) during the Cancellation Period.
5. Title & Risk
The risk in the Goods shall pass to the Customer on completion of delivery. For the avoidance of doubt, upon delivery to the Customer, the Goods supplied will be the sole responsibility of the Customer.
5.2. Title to the Goods shall not pass to the Customer until the Supplier receives payment in full and cleared funds for the Goods.
5.3. Until title to the Goods has passed to the Customer, the Customer shall:
5.3.1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
5.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.3. maintain the Goods in satisfactory condition and keep it insured against all risks for its full price from the date of delivery;
5.3.4. notify the Supplier immediately if it becomes subject to any of the events listed in clause 17.1.2 to clause 17.1.10 (if applicable); and
5.3.5. give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
5.4. At any time before title to the Goods has passed to the Customer, the Supplier may 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. This clause 5.4 shall not apply in circumstances where the Customer is a Consumer.
6. Supply of Services
6.1. The Supplier shall use reasonable endeavours to supply the Services in accordance with the Order or as otherwise agreed in writing by the Customer and the Supplier (the “Services Specification”) in all material respects.
6.2. The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
6.3. The Supplier shall use reasonable endeavours to observe all reasonable health and safety and security requirements that apply at any of the Customer's premises and that have been communicated to it in advance, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract. This clause 6.3 shall not apply in circumstances where the Customer is a Consumer.
7. Customer’s Obligations
7.1. The Customer shall:
7.1.1. co-operate with the Supplier in all matters relating to the Services;
7.1.2. provide the Supplier, its agents, subcontractors, consultants and employees with access to the Customer's premises, office accommodation and other facilities (as applicable) as reasonably required by the Supplier to provide the Services;
7.1.3. provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) reasonably required by the Supplier in connection with the Services and ensure that they are accurate and complete;
7.1.4. inform the Supplier of all health and safety and security requirements that apply at any of the Customer's premises (where the Customer is not a Consumer);
7.1.5. obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to install the Goods and/or provide the Services before the date on which the Goods is to be installed and/or the Services are to start;
7.1.6. keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation.
7.2. If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer and, where the Customer is not a Consumer, its agents, subcontractors, consultants or employees (the Customer Default), then:
7.2.1. without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
7.2.2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 7.2; and
7.2.3. the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
8. Nature of the Goods
8.1. This clause 8 shall only apply to a Customer who is a Consumer.
8.2. The Consumer Rights Act 2015 gives a Customer who is a Consumer certain legal rights (also known as ‘statutory rights’). The Goods that the Supplier provides to the Customer shall be as described, fit for purpose and of satisfactory quality.
8.3. The Supplier is under a legal duty to supply the Customer with Goods that are in conformity with the Contract.
8.4. The Goods shall:
(a) conform with their description and any relevant specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
8.5. Any Goods sold at discount prices, as remnants or as substandard will be identified and sold as such. The Customer should check that the Goods are of a satisfactory quality for their intended use.
9. Nature of Services
9.1. This clause 9 shall only apply to a Customer who is a Consumer.
9.2. The Consumer Rights Act 2015 gives a Customer who is a Consumer certain legal rights (also known as ‘statutory rights’). The Services shall be carried out with reasonable care and skill. In addition:
9.2.1. where the price has not been agreed upfront, the cost of the Services shall be reasonable;
9.2.2. where no time period has been agreed upfront for the provision of the Services, the Supplier shall carry out the Services within a reasonable time; and
9.2.3. the Customer can ask the Supplier to repeat or fix a Service if it is not carried out with reasonable care and skill, or receive some money back if the Supplier is unable to fix it.
10. Faulty Goods or Services
10.1. This clause 10 shall only apply to a Customer who is a Consumer.
10.2. Under the Consumer Rights Act 2015:
10.2.1. a Customer (being a Consumer) can ask the Supplier to repeat or fix a Service if it is not carried out with reasonable care and skill, or receive some money back if the Supplier is unable to fix it;
10.2.2. during the expected lifespan of the Goods, a Customer (being a Consumer) may:
(a) if the Goods are faulty, be entitled to a refund up to 30 days after the Delivery Date;
(b) if the Goods cannot be repaired or replaced, be entitled to a full refund in most cases up to six months after the Delivery Date; and
(c) if the Goods do not last a reasonable length of time, be entitled to some money back up to six years after the Delivery Date.
10.3. For more detailed information on a Consumer’s rights, the Consumer can contact the Supplier using the contact details under clause 1.3 above or visit the Citizens Advice website: www.citizensadvice.org.uk.
10.4. Nothing in this contract affects the Consumer’s legal rights under the Consumer Rights Act 2015 (also known as ‘statutory rights’). The Consumer may also have other rights in law.
10.5. If there is something wrong with the Services provided to a Customer who is a Consumer, the remedies for Services under the Consumer Rights Act 2015 shall apply. If there is something wrong with the Customer who is a Consumer’s Goods, the remedies for Goods under the Consumer Rights Act 2015 will apply. In practice, there may be some overlap between the remedies available to the Customer and the Supplier shall use reasonable endeavours to agree the most appropriate course of action.
10.6. If the Goods or Services the Supplier has provided to the Customer who is a Consumer are faulty, the Customer should contact the Supplier using the contact details at the top of these Conditions.
11. Charges & Payment
11.1. The price for Goods:
11.1.1. shall be the price set out in the Pricing Offer, or as otherwise agreed in writing between the Supplier and the Customer from time to time; and
11.1.2. shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods unless otherwise agreed in writing between the Customer and the Supplier from time to time, which shall be invoiced to the Customer.
11.2. The Supplier shall charge for Services on an estimates basis using its rates per square metre of Goods installed as set out in the Contract or as agreed with the Customer verbally or, if the Services are being provided under a Plot Call Off Order, the charges shall be calculated on the price payable per Plot as set out in the Contract or as agreed with the Customer verbally. The Supplier may charge the Customer a lower or higher amount than stated in the estimate and this might occur for a number of reasons, in particular, if what the Customer needs the Supplier to do changes, or the amount of Services the Customer needs the Supplier to carry out increases or is different from what was agreed before the Supplier started carrying out the Services; or when the Supplier starts to carry out the Services, it becomes clear the extent of Services it will need to carry out is different from what was initially agreed and the Supplier could not have reasonably foreseen this; or when there is a delay to the commencement of the Services and, in the meantime, the Supplier’s base rates have increased.
11.3. The Supplier reserves the right to:
11.3.1. increase the charges for Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index;
11.3.2. 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:
(a) 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);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(c) 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.
11.4. In case additional costs become payable in accordance with clause 11.3 above, the Customer shall be given an opportunity to cancel their Order in the event that the Customer reasonably concludes within a reasonable timeframe that the increase in the charges is too high in relation to the charges agreed when the Order was delivered. This right to cancel shall only apply in circumstances where the Customer is a Consumer.
11.5. In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services.
11.6. The Customer shall pay each invoice submitted to it by the Supplier within 30 days (unless otherwise notified in writing by the Supplier to the Customer) of receipt in full and in cleared funds to a bank account nominated in writing by the Supplier from time to time and time for payment shall be of the essence of the Contract.
11.7. Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under the Contract on the due date:
11.7.1. 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 11.7.1 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
11.7.2. the Supplier may suspend all or part of the Services until payment has been made in full.
11.8. All sums payable to the Supplier under the Contract:
11.8.1. are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
11.8.2. shall, if the Customer is a Business Customer, be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12. Intellectual Property Rights
The Supplier and its licensors shall retain ownership of all Intellectual Property Rights created by it (or its employees or subcontractors) in the course of the supply of the Goods and the performance of the Services.
13. Compliance with Laws
In performing their obligations under or in connection with the Contract, each party shall comply with all Applicable Laws.
14. Data Protection
14.1. The Supplier’s privacy policy is available at https://www.energystoreltd.com/privacy-policy.
14.2. Any personal information that the Customer provides to the Supplier shall be dealt with in line with the Supplier’s privacy policy, which explains what personal information the Supplier collects from you, how and why it collects, stores, uses and shares such information, the Customer’s rights in relation to its personal information and how to contact the Supplier and supervisory authorities if the Customer has a query or complaint about the use of its personal information.
15. Confidentiality
15.1. Each party shall keep confidential any confidential information concerning the business, affairs, customers, clients or suppliers of the other party and shall only use the same as required to perform the Contract, except as permitted by clause 15.2.
15.2. Each party may disclose the other party's confidential information:
15.2.1. if applicable, 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. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 14.1; and
15.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3. The provisions of this clause shall not apply to any information which was in the public domain at the date of the Contract or which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
15.4. This clause shall remain in force for a period of 5 years from the date of the Contract.
16. Limitations of Liability
16.1. Notwithstanding any other provision of the Contract, the liability of the Supplier shall not be limited in any way in respect of the following:
16.1.1. death or personal injury caused by its negligence;
16.1.2. fraud or fraudulent misrepresentation; or
16.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) and section 12 of the Sale of Goods Act 1979; or
16.1.4. any other liability which cannot be limited or excluded by Applicable Law.
16.2. Subject to clause 16.1, the Supplier shall not be liable to the Customer (being a Consumer) for any losses that were not foreseeable to the Customer and the Supplier when the contract was formed, losses that were not caused by any breach on the Supplier’s part, losses that were avoidable by the Customer taking reasonable action or business losses.
16.3. Subject to clause 16.1, the Supplier shall not be liable to the Customer (which is a Business Customer), for consequential, indirect or special losses.
16.4. Subject to clause 16.1, the Supplier shall not be liable to the Customer (which is a Business Customer), for any of the following (whether direct or indirect):
16.4.1. loss of profits;
16.4.2. loss of sales or business;
16.4.3. loss of agreements or contracts;
16.4.4. loss of anticipated savings;
16.4.5. loss of or damage to goodwill;
16.4.6. loss of commercial opportunity; or
16.4.7. loss of use or corruption of software, data or information.
16.5. Subject to clause 16.1, the Supplier's total liability to the Customer (which is a Business Customer), whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 100% of all sums paid by the Customer to the Supplier in respect of Goods and Services sold and/or supplied by the Supplier under the Contract.
16.6. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from any Contract between the Supplier and the Customer (which is a Business Customer).
16.7. The clause 16 shall survive termination of the Contract.
17. Termination
17.1. 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:
17.1.1. the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
17.1.2. the other party (being an individual) becomes bankrupt;
17.1.3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
17.1.4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
17.1.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
17.1.6. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
17.1.7. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
17.1.8. a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
17.1.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
17.1.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.1.4 to clause 17.1.9 (inclusive); or
17.1.11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
17.2. 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 the Customer fails to pay any amount due under the Contract on the due date for payment.
17.3. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services and/or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 17.1.2 to clause 17.1.10 or the Supplier reasonably believes that the Customer is about to become subject to any of them.
17.4. For the avoidance of doubt, clauses 17.1.4 to 17.1.11 shall not apply in circumstances where the Customer is a Consumer.
18. Consequences of Termination
18.1. On termination or expiry of the Contract:
18.1.1. the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt; and
18.1.2. the Customer shall return all of the Supplier Materials and 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, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract
18.2. Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or expiry.
18.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
19. Force Majeure
19.1. Provided it has complied with clause 19.3, if a party is affected by a Force Majeure Event (the “Affected Party”), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
19.2. The corresponding obligations of the other party (other than the obligation to make payment) will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
19.3. The Affected Party shall:
19.3.1. as soon as reasonably practicable after the start of the Force Majeure Event, 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 agreement; and
19.3.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
20. General
20.1. The Customer shall not assign, transfer, mortgage, charge, subcontract, 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. The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
20.2. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
20.3. Except as set out in clause 2.8, a waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
20.4. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
20.5. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
20.6. The Contract (and any documents entered into pursuant to it) constitutes the entire agreement between the Supplier and Customer (which is a Business Customer) 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 of the Supplier and the Customer (which is a Business Customer) agrees that it 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 (or any documents entered into pursuant to it) and that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement the Contract.
20.7. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20.8. Except as expressly provided for in clause 20.9, 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.
20.9. 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.
20.10. 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 shall prevail to the extent of the conflict.
20.11. Any notice required to be given to the Customer under the Contract shall be in writing addressed to the Customer at its registered office or principal place of business (or residential address in the case of a Consumer) or last notified email address. Any notice required to be given to the Supplier under the Contract shall be in writing addressed to the Supplier at its registered office or last notified email address.
20.12. The Contract shall be governed by and construed in accordance with the laws of Northern Ireland and the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract.
