TERMS AND CONDITIONS OF DERMAPURE LIMITED
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 14 (LIMITATION OF LIABILITY)
The following definitions and rules of interpretation apply in these Conditions:
|Applicable Laws||has the meaning given in clause 12.1;|
|Business Day||a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;|
|Commencement Date||has the meaning given in clause 2.2;|
|Company||Dermapure Limited incorporated and registered in England and Wales under company number 05660388 and whose registered office is 1 Paper Mews, 330 High Street, Dorking, Surrey RH4 2TU;|
|Company Materials||has the meaning given in clause 8.1.12;|
|Conditions||these terms and conditions as amended from time to time in accordance with clause 19.10;|
|Contract||the contract between the Company and the Customer for the supply of Products and/or Services as set out in the Order and subject to and in accordance with these Conditions;|
|Customer||the person or firm who purchases the Products and/or Services from the Company;|
|Customer Default||has the meaning given in clause 8.2;|
|Data Protection Legislation||the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy;|
|Deliverables||the deliverables set out in the Order produced by the Company for the Customer;|
|Delivery Location||has the meaning given in clause 4.3;|
|Domestic UK Law||has the meaning given in clause 12.1;|
|Ex Works||means ex works as defined in the The International Chamber of Commerce published Incoterms 2010 as varied from time to time;|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying a party from performing its obligations hereunder, including without limitation war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions but not including an inability to pay;|
|GDPR||the General Data Protection Regulation ((EU) 2016/679);|
|Products||the Company’s skin and beauty products (or any part of them) as set out in the Order;|
|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, rights in get-up and trade dress, 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;|
|Order||the Customer’s order for the supply of Products and/or Services, as set out in the Customer’s purchase order form, in writing, or orally to the Customer’s allocated business manager;|
|Services||the services, including the Deliverables, supplied by the Company to the Customer as set out in the Service Specification;|
|Service Specification||the online description or specification for the Services comprising training courses offered by the Company; and|
|UK Data Protection Legislation||any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.|
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) 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.
(e) A reference to writing or written includes email and fax.
(f) Unless the context otherwise requires, words in the singular shall include the plural and the plural shall include the singular.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Products and/or Services in accordance with these Conditions.
2.2 The Order be deemed to be accepted when either the Company acknowledges the Order or commences performances at which point and on which date the Contract shall come into existence (“Commencement Date”). Not every Order will be acknowledged by the Company in writing. All Orders shall be subject to availability of stock.
2.3 Any samples, photographs, performance data, descriptive matter or advertising issued by the Company and any descriptions of the properties of the Products or illustrations or descriptions of the Services contained in the Company’s catalogues or brochures and website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract or have any contractual force.
2.4 At any time and without notice to the Customer, the Company reserves the right to make any changes to the design and/or specification of Products and/or Services which are required:
2.4.1 in order to comply with any applicable safety guidance; or
2.4.2 in order to comply with any applicable statutory or other regulatory requirements; or
2.4.3 for any other reason (for as long as such change does not materially affect the quality or performance of the Products and/or Services).
2.5 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 trade, custom, practice or course of dealing.
2.6 Any quotation given by the Company shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue. Quotations are for information purposes only and may be subject to change. The Company reserves the right to withdraw any quotation given to a Customer either verbally or in writing without the Company incurring any liability for any loss suffered by the Company or otherwise.
2.7 Any cancellation of an Order for Products can only be accepted if the Company has received notice in writing from the Customer within 5 Business Days prior to the date quoted for delivery.
2.8 Any cancellation of an Order for Services will be subject to a late cancellation fee if cancellation takes place with notice of ten Business Days or fewer.
2.9 All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.
3.1 All stands, furniture and any other equipment supplied by the Company (whether they are purchased by the Customer or are being loaned by the Company) must only be used for the display of Products. The Company reserves the right to enter into any premises of the Customer where such stands, furniture or other equipment are not be used for the intended purpose for full recovery by the Company.
4. Delivery of Products
4.1 The Company will provide a dispatch notification to the Customer when Products are dispatched for delivery.
4.2 The Company shall ensure that each delivery of the Products is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered.
4.3 The Company shall deliver the Products to the location provided by the Customer on its account application form (“Delivery Location”). If the Customer wishes to change the Delivery Location, it must submit a change of address form to the Company prior to or at the time it places the Order.
4.4 Delivery of the Products shall be completed on the completion of successful delivery.
4.5 Any dates quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence. The Company shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure event or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.6 If the Company fails to deliver all or some of the Products, the Customer must notify the Company in writing within five Business Days from the date of delivery otherwise the Company will not be held liable for any loss suffered or incurred by the Customer whatsoever in respect of the failure to deliver the Products.
4.7 For any claims that are notified to the Company for the failure to deliver Products in accordance with the provisions of clause 4.6, the Company’s sole 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 Products. The Company shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure event or the Customer’s failure to provide the Company with adequate delivery instructions for the Products or any relevant instruction related to the supply of the Products.
4.8 If the Customer fails to accept delivery of the Products within three Business Days of the Company notifying the Customer that the Products are ready, then except where such failure or delay is caused by a Force Majeure event or by the Company’s failure to comply with its obligations under the Contract in respect of the Products:
4.8.1 delivery of the Products shall be deemed to have been completed at 9.00am on the third Business Day following the day on which the Company notified the Customer that the Products were ready; and
4.8.2 the Company shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.9 If ten Business Days after the Company notified the Customer that the Products were ready for delivery the Customer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.10 The Company is under no obligation to accept the return of any Products (either in full or by way of part-exchange for any other Products) that are delivered in accordance with the Order.
4.11 The Company may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Quality of Products
5.1 The Company warrants that the Products shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 The Customer may reject any Products delivered to it that do not comply with clause 5.1, provided that:
5.2.1 notice of rejection is given to the Company within five Business Days of the date of delivery in the case of:
184.108.40.206 a defect that is apparent on normal visual inspection; and/or
220.127.116.11 in respect of Products that are damaged or faulty, and
5.2.2 none of the events listed in clause 5.4 apply.
5.3 Subject to clause 5.4, the Company shall, at its sole discretion replace the defective Products, or refund the price of the defective Products in full if:
5.3.1 the Customer gives notice in writing during the within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 5.1;
5.3.2 the Company is given a reasonable opportunity of examining such Products; and
5.3.3 the Customer (if asked to do so by the Company) returns such Products to the Company’s place of business at the Customer’s cost and where the Company agrees the Product is faulty such reasonable costs will be refunded).
5.4 The Company shall not be liable for the Products’ failure to comply with the warranty in clause 5.1 if:
5.4.1 the Customer makes any further use of such Products after giving a notice in accordance with clause 5.3;
5.4.2 the defect arises because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice;
5.4.3 the Customer alters such Products without the written consent of the Customer;
5.4.4 the defect arises as a result of wilful damage, negligence, or abnormal working conditions; or
5.4.5 the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.5 Except as provided in this clause 5, the Company shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.
5.6 The terms of these Conditions shall apply to any replacement Products supplied by the Company.
6. Title and Risk
6.1 The risk in the Products shall pass to the Customer on completion of delivery.
6.2 Title to the Products shall not pass to the Customer until the earlier of the Company receiving payment in full (in cash or cleared funds) for the Products and any other goods and/or Services that the Company has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums owing to the Company by the Customer together with all interest (if any) due of whatever nature.
6.3 Until title to the Products has passed to the Customer, the Customer shall:
6.3.1 store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
6.3.3 maintain the Products in satisfactory condition and keep them insured against all risks for their full price on the Company’s behalf from the date of delivery;
6.3.4 notify the Company immediately if it becomes subject to any of the events listed in clause 15.1.2 to clause 15.1.4; and
6.3.5 give the Company such information relating to the Products as the Company may require from time to time.
6.4 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1.2 to clause 15.1.4, then, without limiting any other right or remedy the Company may have:
6.4.1 the Customer’s right to resell Products or use them in the ordinary course of its business ceases immediately; and
6.4.2 the Company may at any time:
18.104.22.168 require the Customer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and
22.214.171.124 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
7. Supply of Services
7.1 The Company shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Company 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 Company shall notify the Customer in any such event.
7.4 The Company warrants to the Customer that the Services will be provided using reasonable care and skill.
8. Customer’s Obligations
8.1 The Customer shall:
8.1.1 complete and submit to the Company an account application form prior to placing an initial Order;
8.1.2 ensure that the terms of the Order are complete and accurate;
8.1.3 co-operate with the Company in all matters relating to the Services;
8.1.4 provide the Company, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
8.1.5 provide the Company with such information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.6 not resell or deliver any Products outside the United Kingdom;
8.1.7 not resell or offer for sale Products online in the United Kingdom without the prior written consent of the Company and subject to the Company’s terms of online sale in force from time to time;
8.1.8 inform the Company immediately if the Customer sells or transfers the Products to a third party for the purpose of re-sale or use in the third party’s business. The sale or transfer of the Products to a third party will not result in a transfer of the Customer’s account.
8.1.9 prepare the Customer’s premises for the supply of the Services;
8.1.10 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.11 comply with all applicable laws, including health and safety laws;
8.1.12 keep all materials, equipment, documents and other property of the Company (“Company Materials”) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and
8.1.13 comply with any additional obligations as set out in the Service Specification.
8.2 If the Company’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
8.2.1 without limiting or affecting any other right or remedy available to it, the Company 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 Company’s performance of any of its obligations;
8.2.2 the Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Customer Default.
9. Customer Accounts
9.1 The Customer must inform the Company promptly of any changes to the details provided in the Customer’s account opening application, such as a change of name or address, or the Customer’s personnel contact details. Where the Customer changes its name or ownership, the Customer must submit to the Company a new account application. Where the Customer changes its business address or delivery address, the Customer must submit to the Company a change of address form.
9.2 The Company shall have the right to terminate the Contract if the Customer has not made any Orders in a twelve month period.
10. Charges and Payment
10.1 The price for Products:
10.1.1 shall be the price set out in the Order or, if no price is quoted, the price set out in the Company’s published price list as at the date of the Order; and
10.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Products, which shall be invoiced to the Customer.
10.2 The Company will not charge for the Services but there may be a late cancellation fee if a booking is cancelled with ten or fewer Business Days’ notice.
10.3 Delivery charges to the following destinations will apply to any Orders below the value of:
10.3.1 £250 (to the UK mainland); and
10.3.2 £1,000 (to the Channel Islands, Isle of Man, Isle of White, Northern Ireland, Republic of Ireland and the Scottish Isles).
10.4 Delivery of any Orders overseas are Ex Works and the minimum value of any Order overseas is £1,000 (one thousand pounds) exclusive of all costs and charges of packaging, insurance, transport of the Products, which shall be paid by the Customer.
10.5 The Company reserves the right to:
10.5.1 increase the charges for the 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;
10.5.2 increase the price of the Products, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Products to the Company that is due to:
10.5.2.1 any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
10.5.2.2 any request by the Customer to change the delivery date(s), quantities or types of Products ordered; or
10.5.2.3 any delay caused by any instructions of the Customer in respect of the Products or failure of the Customer to give the Company adequate or accurate information or instructions in respect of the Products.
10.6 In respect of Products, the Company shall invoice the Customer on or prior to delivery.
10.7 The Company may offer payment credit terms to its Customers at its sole discretion. The Company reserves the right to withdraw or reduce credit facilities from Customers who do not make payment of their account in full upon payment becoming due and in accordance with these Conditions.
10.8 The Customer shall pay each invoice submitted by the Company:
10.8.1 within thirty days of the date of the invoice or in accordance with any credit terms agreed by the Company and confirmed in writing to the Customer; and
10.8.2 in full and in cleared funds to a bank account nominated in writing by the Company, and
time for payment shall be of the essence of the Contract.
10.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT), any similar sales tax or any tax that replaces such sales taxes. Where any taxable supply for VAT purposes is made under the Contract by the Company to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services or Products at the same time as payment is due for the supply of the Services or Products.
10.10 If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to the Company, the Customer shall increase the sum it pays to the Company by the amount necessary to leave the Company with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
10.11 VAT applies to all Products sold in the UK at the prevailing rate. In the case of exports to Customer’s based outside of the European Commission or exports to a Customer forming part of the European Commission with a bona fide VAT number, the VAT rate is zero per cent.
10.12 If the Customer fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clause 15 (Termination), 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 10.12 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%.
10.13 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11. Intellectual Property Rights
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Company.
12. Data Protection and Data Processing
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 12, Applicable Laws means (for so long as and to the extent that they apply to the Company) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Company is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
12.3 Without prejudice to the generality of clause 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Company for the duration and purposes of the Contract.
12.4 Without prejudice to the generality of clause 12.1, the Company shall, in relation to any Personal Data processed in connection with the performance by the Company of its obligations under the Contract:
12.4.1 process that Personal Data only on the written instructions of the Customer unless the Company is required by Applicable Laws to otherwise process that Personal Data. Where the Company is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Company shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Company from so notifying the Customer;
12.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
12.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
12.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
126.96.36.199 the Customer or the Company has provided appropriate safeguards in relation to the transfer;
188.8.131.52 the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
184.108.40.206 the Company complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
220.127.116.11 the Company complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
12.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach;
12.4.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
12.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 12.
12.5 On occasions, an individual’s personal data may be given to the Company by the Customer regarding its clients for the purposes of the Company providing or improving its products and services. For example details relating to a product reaction or frequency of use of a Product by an individual may be passed to the Company and where the information is not anonymised it will comprise personal data. The Company will record such information as is necessary to respond to any notification of a product sensitivity or reaction. The Company may for the purposes of analysis or updating its suppliers pass this information to overseas suppliers. Where it does so, the information will be anonymised as far as is possible. The Customer will notify its clients that their personal data may be used in this way and ensure that data is passed to the Company in accordance with the Data Protection Legislation.
12.6 The Customer will indemnify and keep indemnified the Company 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 supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under the Data Protection Legislation for which the Company suffers a loss. This indemnity shall not be subject to any other financial limitations agreed between the parties.
12.7 Either party may, at any time on not less than 30 days’ notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
13.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information:
13.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12UPDATE FC; and
13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
14. Limitation of Liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
14.1.1 death or personal injury caused by negligence;
14.1.2 fraud or fraudulent misrepresentation; and
14.1.3 breach of the terms implied by section 12 of the Sale of Products Act 1979 or section 2 of the Supply of Products and Services Act 1982 (title and quiet possession).
14.2 Subject to clause 14.1, the Company’s total liability to the Customer shall not exceed the cap.
14.3 In clauses 14.2 and this 14.3 the following definitions shall apply:
14.4 “cap” means one hundred per cent (100%) of the total charges in the contract year in which the breaches occurred;
14.5 “contract year” means a 12-month period commencing with the date of the Contract or any anniversary of it;
14.6 “total charges” means all sums paid by the Customer and all sums payable under the Contract in respect of Products and Services actually supplied by the Company, whether or not invoiced to the Customer; and
14.7 “total liability” includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
14.8 This clause 14.8 sets out specific heads of excluded loss:
14.8.1 Subject to clause 14.1, the types of loss listed in clause 14.8.2 UPDATE FCare wholly excluded by the parties.
14.8.2 The following types of loss are wholly excluded:
18.104.22.168 loss of profits.
22.214.171.124 loss of sales or business.
126.96.36.199 loss of agreements or contracts.
188.8.131.52 loss of anticipated savings.
184.108.40.206 loss of use or corruption of software, data or information.
220.127.116.11 loss of or damage to goodwill.
18.104.22.168 indirect or consequential loss.
14.8.3 The following types of loss and specific loss are not excluded:
22.214.171.124 sums paid by the Customer to the Company pursuant to the Contract, in respect of any Products or Services not provided in accordance with the Contract;
126.96.36.199 wasted expenditure; and
188.8.131.52 additional costs of procuring and implementing replacements for, or alternatives to, Products and/or Services not provided in accordance with the Contract.
14.9 The Company has given commitments as to compliance of the Products and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Products Act 1979 and sections 3, 4 and 5 of the Supply of Products and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Conditions.
14.10 Unless the Customer notifies the Company that it intends to make a claim under this Contract within the notice period, the Company shall have no liability for that event. The notice period shall start on the day on which the Customer became, or ought reasonably to have become, aware of an event giving rise to a claim under the Contract having occurred and shall expire six months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.11 This clause 14 shall survive termination of the Contract.
15.1 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:
15.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within seven days after receipt of notice in writing to do so;
15.1.2 (being a company) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), 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;
15.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
15.1.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
15.2 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if:
15.2.1 the Customer fails to pay any amount due under the Contract on the due date for payment;
15.2.2 (being an individual) a bankruptcy order is made against a Customer, or an arrangement or composition is made with a Customer’s creditors, or where the Customer otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors;
15.2.3 (being a company) there is a change of control of the Customer; or
15.2.4 in accordance with clause 9.2 (no activity for twelve months).
15.3 Without affecting any other right or remedy available to it, the Company may suspend the supply of Services or all further deliveries of Products under the Contract or any other contract between the Customer and the Company 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 15.1.2 to clause 15.1.4, or the Company reasonably believes that the Customer is about to become subject to any of them.
16. Consequences of Termination
16.1 On termination of the Contract:
16.1.1 the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services and Products supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt;
16.1.2 the Customer shall return all of the Company Materials and any Deliverables or Products which have not been fully paid for. If the Customer fails to do so, then the Company 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.
16.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
17. Import and Export Licences
Where the Customer is based outside of the United Kingdom, the Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Products as are required from time to time and, if required by the Company, the Customer shall make those licences and consents available to the Company prior to shipment.
18. Force Majeure
Neither party shall 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 result from a Force Majeure event.
19.1 Professional Use
19.1.1 The Products are designed and intended for the use of professional beauty therapists and their genuine clients. These Conditions do not apply to consumers and the Company has separate terms of business for products made available to consumers.
19.1.2 Certain Products are sold only on the understanding that they are to be used for the purpose intended by a qualified person. The Company offers training and accompanying materials for the use of such Products and its guidance manuals must be followed at all times in applying such Products. These will be clearly indicated in the Order. The Company will accept no responsibility if the Products are incorrectly used and consequently cause any kind of harm or damage. The Company reserves the right to refuse an Order and shall be held harmless by the Customer if it believes a Customer is not a professional salon business, has not received appropriate training or is not following Company procedures.
19.1.3 By ordering any products labelled as for professional use you acknowledge and warrant that you and any other person who may use the product have the necessary training and experience to use/store the product safely.
19.2 Assignment and Other Dealings
19.2.1 The Company 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.
19.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.
19.3.1 Any notice given to a party under or in connection with these Conditions shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
19.3.2 Any notice shall be deemed to have been received:
184.108.40.206 if delivered by hand, on signature of a delivery receipt; and
220.127.116.11 if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service.
19.3.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
19.3.4 A notice given under these Conditions is not valid if sent by email.
19.5 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
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 right or remedy. 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.
19.7 No Partnership or Agency
Nothing in the Contract is intended to, or shall 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.
19.8 Entire Agreement.
19.8.1 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.
19.8.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently and, for the avoidance of doubt, whether made by any employees and/or agents of the Company) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
19.8.3 Nothing in this clause shall limit or exclude any liability for fraud.
19.9 Third Parties 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 shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
19.11 Governing Law
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall 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.