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Terms & Conditions

PFG Brand ATTRACTION EU LTD T/A PORTFOLIO GROUP – TERMS AND CONDITIONS OF SALE
The Customer's attention is particularly drawn to the provisions of clause 12 (Limitation of
liability).
1 Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions:
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.
Conditions: these terms and conditions as amended from time to time in accordance with clause
16.8.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or
Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 15.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings,
which are agreed in writing (including email) by the Customer and the Supplier excluding the
Technical Data Sheet.
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 Goods and/or Services, as set out in the Customer's
purchase order form, or the Customer's written acceptance (including email) of the Supplier's
quotation, or overleaf, as the case may be.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out
in the Service Specification.
Service Specification: the description or specification for the Services provided in writing (including
email) by the Supplier to the Customer.
Supplier: PFG Brand Attraction EU Ltd t/a Portfolio Group registered in Ireland with company
number IE3457666MH
Portfolio Group
Kilbarrack Parade, Dublin 5,
Ireland, D05 TF86.
T: (01) 8394918 | E: [email protected]
W: www.portfoliogroup.ie
Co Reg: 598746 VAT Reg: IE3457666MH
Supplier Materials: has the meaning given in clause 8.1(h).
Technical Data Sheet: an information sheet in respect of any of the Goods and/or Services provided
by the Supplier to the Customer or made available by the Supplier or any other supplier or
manufacturer of the Goods and/or Services.
2 Interpretation:
(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 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 fax but not email (save where expressly permitted by
these Conditions).
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in
accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance
(including email) of the Order at which point and on which date the Contract shall come into
existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued or made available by the
Supplier, including without limitation any Technical Data Sheets, 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 Services and/or Goods
described in them. They shall not form part of the Contract or have any contractual force and the
Supplier makes no warranty, representation or guarantee in respect of them.
2.4 The Customer confirms that they will not rely on the contents of any samples, drawings,
descriptive matter or advertising issued or made available by the Supplier, including without
limitation any Technical Data Sheets, as to the quality and suitability of the Goods and/or Services
and the Customer warrants that they will satisfy themselves that the Goods and or Services are
suitable for their intended purpose by way of independent testing or other processes.
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 Supplier shall not constitute an offer, and is only valid for a period of
20 Business Days from its date of issue, unless withdraw earlier by the Supplier.
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.
3. Goods
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification
supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs,
expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit,
loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and
all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in
connection with any claim made against the Supplier for actual or alleged infringement of a third
party's intellectual property rights arising out of or in connection with the Supplier's use of the
Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable
statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
(a) 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), if
the Order is being delivered by instalments, the outstanding balance of Goods remaining to be
delivered; and
(b) it states clearly on the delivery note any requirement for the Customer to return any packaging
material to the Supplier. The Customer shall make any such packaging materials available for
collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall
be at the Supplier's expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as
the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that
the Goods are ready.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the
Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not
of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused
by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery
instructions or any other instructions that are relevant to the supply of the Goods.
4.5 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 for the Goods or any
relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to take delivery of the Goods at any time, then except where such failure 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:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Business Day
following the day on which the Supplier attempted delivery of the Goods; and
(b) the Supplier shall store the Goods until physical delivery takes place, and charge the Customer
for all related costs and expenses (including insurance).
4.7 If ten Business Days after the goods are deemed to have been delivered in accordance with
clause 4.6(a) the Customer has not taken physical delivery of them, the Supplier may resell or
otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling
costs, account to the Customer for any excess over the price of the Goods or charge the Customer
for any shortfall below the price of the Goods.
4.8 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered
the Customer may not reject them but the Supplier shall make a pro rata adjustment to the invoice
for the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for
separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an
instalment shall not entitle the Customer to cancel any other instalment.
5. Quality of Goods
5.1 The Supplier warrants that on delivery the Goods shall be free from material defects in design,
material and workmanship.
5.2 Subject to clause 5.3, the Supplier shall, at its option, repair or replace the defective Goods, or
refund the price of the defective Goods in full if:
(a) the Customer gives notice in writing within 3 Business Days of discovery that some or all of the
Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of
business at the Customer's cost.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with
clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier's and/or product
manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or
maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification
supplied by or agreed with the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working
conditions; or
(f) the Goods differ from their description or any applicable Goods Specification as a result of
changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect
of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the
Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery (or deemed delivery).
6.2 Subject to clause 6.4, title to the Goods shall not pass to the Customer until the Supplier receives
payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has
supplied to the Customer in respect of which payment has become due, in which case title to the
Goods shall pass at the time of payment of all such sums.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily
identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full
price on the Supplier's behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.2(b)
to clause 13.2(d); and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to
time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its
business (but not otherwise) before the Supplier receives payment for the Goods. However, if the
Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at
which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the
events listed in clause 13.2(b) to clause 13.2(d), then, without limiting any other right or remedy the
Supplier may have:
(a) the Customer's right to resell Goods or use them in the ordinary course of its business ceases
immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or
irrevocably incorporated into another product; and
(ii) 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
7. Supply of Services
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service
Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services
that the Supplier has specified 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 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.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care
and skill.
8. Customer's obligations
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in any Service Specification
and any Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the
Customer's premises, office accommodation and other facilities as reasonably required by the
Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require
in order to supply the Services, and ensure that such information is complete and accurate in all
material respects;
(e) 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;
(f) comply with all applicable laws, including health and safety laws;
(g) prepare the Customer’s premises for the supply of the Services;
(h) 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; and
(i) comply with any additional obligations as set out in any Service Specification and any Goods
Specification.
8.2 If the Supplier'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):
(a) 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;
(b) 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 8.2; and
(c) the Customer shall reimburse and indemnify the Supplier on written demand for any costs or
losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. Charges and payment
9.1 The price for Goods:
(a) shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's
published price list as at the date of delivery;
(b) includes any discount (where applicable); and
(c) shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which
shall be invoiced to the Customer.
9.2 The charges for Services shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier's daily fee rates, as set out in its
current price list at the date of the Contract;
(b) the Supplier's daily fee rates for each individual person are calculated on the basis of an eighthour
day from 8.00 am to 5.00 pm worked on Business Days;
(c) the Supplier shall be entitled to charge an overtime rate of the daily fee rate plus 5% of the daily
fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages
on the Services outside the hours referred to in clause 9.2(b); and
(d) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by
the individuals whom the Supplier engages in connection with the Services including travelling
expenses, hotel costs, subsistence and any associated expenses, and for the cost of services
provided by third parties and required by the Supplier for the performance of the Services, and for
the cost of any materials.
9.3 The Supplier reserves the right to:
(a) 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;
(b) increase the price of the Goods and/or Services, by giving notice to the Customer at any time
before delivery or commencement of the Services, to reflect any increase in the cost of the Goods
and/or Services to the Supplier that is due to:
(i) 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);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods and/or
Services ordered, or the Goods and/or Service Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods and/or Services or
failure of the Customer to give the Supplier adequate or accurate information or instructions in
respect of the Goods and/or Services.
9.4 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 may invoice the Customer on completion of the
Services or monthly in arrears.
9.5 Subject to clause 9.6 and unless any other payment schedule is agreed in writing (including
email) between the Supplier and the Customer, the Customer shall pay each invoice submitted by
the Supplier:
(a) no later than the end of the month following the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
9.6 The Supplier may, at any time, require the Customer:
(a) to make full or a part payment in respect of the Goods and/or Services in advance of delivery or
commencement of the Services (as the case may be); or
(b) to advance adequate security (in the Supplier’s opinion) for the payment of any amounts due, or
to become due under the Contract.
9.7 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). Where any taxable supply for VAT purposes is
made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid
VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are
chargeable on the supply of the Services or Goods at the same time as payment is due for the supply
of the Services or Goods.
9.8 If the Customer fails to make a payment due to the Supplier under the Contract by the due date,
then, without limiting the Supplier's remedies under clause 13 (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 9.8 will accrue each day at 4% a year above the Bank of
England's base rate from time to time, but at 4% a year for any period when that base rate is below
0%.
9.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim,
deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Intellectual property rights
10.1 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
Supplier.
10.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully
paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the
Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using
the Services and the Deliverables.
10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause
10.2.
10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable
licence to copy and modify any materials provided by the Customer to the Supplier for the term of
the Contract for the purpose of providing the Services to the Customer.
11. Confidentiality
11.1 Each party undertakes that it shall not at any time, disclose to any person any confidential
information concerning the business, affairs, customers, clients or suppliers of the other party,
except as permitted by clause 11.2.
11.2 Each party may disclose the other party's confidential information:
(a) 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 11; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory
authority.
11.3 Neither party shall use the other party's confidential information for any purpose other than to
perform its obligations under the Contract.
12. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS
CLAUSE.
12.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or
subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and
quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet
possession); or
(e) defective products under the Consumer Protection Act 1987.
12.2 Subject to clause 12.1, the Supplier shall not be liable to the Customer, whether in contract,
tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection
with the Contract for:
(a) loss of profits;
(b) loss of wasted expenditure;
(c) loss of sales or business;
(d) loss of agreements or contracts;
(e) loss of anticipated savings;
(f) loss of use or corruption of software, data or information;
(g) loss of or damage to goodwill; and
(h) any indirect or consequential loss.
12.3 Subject to clause 12.1, the Supplier's total liability to the Customer in respect of all losses
arising under or in connection with the Contract, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, shall in no circumstances exceed an amount equal to the
aggregate price of the Goods and Services.
12.4 In the event that the limitation on liability set out in clause 12.3 is found by any court, tribunal
or administrative body of competent jurisdiction to be illegal, invalid, void, voidable, unenforceable
or unreasonable then subject to clause 12.1, the Supplier’s total liability in contract, tort (including
negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in
connection with the Contract shall in no circumstances exceed an amount equal to 150% of the
aggregate price of the Goods and Services.
12.5 In the event that the limitations on liability set out in clauses 12.3 and 12.4 are found by any
court, tribunal or administrative body of competent jurisdiction to be illegal, invalid, void, voidable,
unenforceable or unreasonable then subject to clause 12.1, the Supplier's total liability in contract,
tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise,
arising in connection with the Contract shall be limited to the amount that the Supplier is able to
recover from its insurers in respect of the losses claimed.
12.6 The Supplier shall not be liable for any advice it gives to the Customer.
12.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by
sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by
law, excluded from the Contract.
12.8 This clause 12 shall survive termination of the Contract.
13. Termination
13.1 Without affecting any other right or remedy available to it, either party may terminate the
Services by giving the other party not less than 3 months' written notice.
13.2 Without affecting any other right or remedy available to it, either party may terminate the
Contract with immediate effect by giving written notice to the other party if:
(a) 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 14 days after receipt of notice in writing to
do so;
(b) 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;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all
or a substantial part of its business; or
(d) 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.
13.3 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:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
13.4 Without affecting any other right or remedy available to it, the Supplier may suspend the
supply of Services 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 13.2(b) to clause 13.2(d), or the Supplier reasonably believes that the Customer is about to
become subject to any of them.
14. Consequences of termination
14.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid
invoices and interest and, in respect of Services and Goods supplied but for which no invoice has
been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer
immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables or 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; and
(c) the Supplier may, without notice, withdraw any credit facility that has been made available to the
Customer.
14.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and
liabilities of the parties that have accrued up to the date of termination or expiry, including the right
to claim damages in respect of any breach of the Contract which existed at or before the date of
termination or expiry.
14.3 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.
15. 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 events,
circumstances or causes beyond its reasonable control, including but not limited to acts of God, war,
strikes, lockouts, trade disputes, fire, flood, riots or storms.
16. General
16.1 Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust
over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) 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.
16.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract
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); or sent by fax to its main fax number or by email (if expressly permitted in respect of the
notice of communication in question) to such email address as notified by a party to the other party
from time to time.
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand,
on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by
pre-paid first-class post or other next working day delivery service, at 9.00 am on the second
Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email
(if expressly permitted in respect of the notice of communication in question), at 9.00 am on the
next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal
action or, where applicable, any other method of dispute resolution.
3 Severance. 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.
16.4 Waiver. 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. 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.
16.5 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.
16.6 Entire agreement.
(a) 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.
(b) 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) that is not set out in the Contract. Each party agrees that it shall have no
claim for innocent or negligent misrepresentation or negligent misstatement based on any
statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
16.7 Third parties rights. 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.
16.8 Variation. 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).
16.9 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 Ireland
16.10 Jurisdiction. Each party irrevocably agrees that the courts of Ireland 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.