TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND/OR SERVICES:
The Customer's attention is particularly drawn to the provisions of clause 15 (Limitation of Liability and Indemnity). Click here to download a copy of our Terms and Conditions.
1. INTERPRETATION
1.1 The following definitions and rules of interpretation apply in these Conditions.
BDL: Blackburn Distributions Limited, a limited company registered in England and Wales with company number 06310918 and whose registered office is at Bell Wy, Burnley BB12 0BS.
BDL Materials: all materials, equipment, documents and other property of BDL.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Commencement Date: has the meaning given in clause 3.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 19.8.
Consultancy Services: the consultation services provided by BDL to assist the Customer in reaching a determination as to the nature of Goods and/or Services which it requires.
Contract: the contract between BDL and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person or firm who purchases the Goods and/or Services from BDL.
Customer Products: the products (if any), any artwork or electronic files, packaging, labelling and any other items, documents or files provided by the Customer to BDL in relation to which the Services are to be provided.
Data Controller: has the meaning set out in section 1(1) of the DPA.
Data Subject: an individual who is the subject of Personal Data.
Deliverables: the encapsulated Customer Products and/or such other deliverables and Documentation as set out in the Order (or otherwise agreed between the parties) produced by BDL for the Customer.
Delivery Location: has the meaning given in clause 5.2.
Differentials: has the meaning given in clause 9.4.1.
Documentation: shall mean any documentation provided to the Customer to accompany the Goods and/or the Deliverables.
DPA: means the Data Protection Act 1998.
Force Majeure Event: means any events, circumstances or causes beyond its reasonable control.
Goods: the goods (or any part of them) and any Documentation set out in the Order (or otherwise agreed between the parties).
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.
Local Regulations: shall take the meaning given to it in clause 4.2.2.
Losses: means charges, claims, costs, damages, demands, expenses, fees, liabilities, losses and proceedings.
Order: the Customer's order for the supply of Goods and/or Services, as set out (as the case may be) in the Customer's purchase order form; the Customer's written acceptance of BDL's quotation; or in the Customer's purchase order form.
Personal Data: has the meaning set out in section 1(1) of the DPA and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which BDL is providing services under the Contract.
Processing and process: have the meaning set out in section 1(1) of the DPA.
Services: the Consultancy Services, encapsulation services and/or other services, including the Deliverables, supplied by BDL to the Customer as set out in the Specification.
Specification: any specification for the Goods and/or the Services (including any Deliverables), including any relevant plans or drawings, that is provided in writing whether as part of the Order or otherwise agreed in writing by the Customer and BDL.
1.2 Interpretation:
1.2.1: A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2: A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3: 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.
1.2.4: 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.
1.2.5: A reference to writing or written includes emails.
2. QUOTATION
2.1 All quotations provided by BDL are free and no-obligation.
2.2 Where and to the extent that the Services are required, the quotation shall contain outline details of:
2.2.1: the Customer’s desired formula, estimated timescales for production based on one of the three following packages:
2.2.1.1: Package 1 – manufacture and bulk packing of capsules;
2.2.1.2: Package 2 – manufacture and bespoke packing of capsules in agreed form; or
2.2.1.3: Package 3 – manufacture and bespoke packing of capsules in agreed form together with provision of printing and application of labels in accordance with industry requirements;
2.2.2: the Consultancy Services available where and to the extent that the Customer is not certain as to the nature of its desired formula or what other Goods and/or Services it may require based on one of the three following options:
2.2.2.1: Option 1 – where the Customer has a formulation in mind but requires the production of a small (24 capsule) sample in advance of purchasing greater quantities;
2.2.2.2: Option 2 – where the Customer has a formulation in mind but requires both BDL to assist in finalising it and the production of a small (24 capsule) sample in advance of purchasing greater quantities; or
2.2.2.3: Option 3 – where the Customer does not have a formulation and requires BDL to create one for it and the production of a small (24 capsule) sample in advance of purchasing greater quantities.
For the avoidance of doubt the Consultancy Services shall not be construed as legal advice in any scenario (including relating to the Local Regulations) and shall not be taken as a substitute for taking advice from any legally qualified or other professional. The Customer agrees that BDL shall not be liable to it in any way for any reliance on the Consultancy Services.
3. BASIS OF CONTRACT
3.1: The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
3.2: The Order shall only be deemed to be accepted when BDL issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
3.3: Any samples, drawings, descriptive matter or advertising issued by BDL and any descriptions of the Goods or illustrations or descriptions of the Services contained in BDL'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.
3.4: 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.
3.5: Any quotation given by BDL shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
3.6: All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
4. GOODS
4.1: The Goods are described in BDL's literature as modified by any applicable Specification.
4.2: For the avoidance of doubt any obligations of BDL under these Conditions shall not prejudice the Customer’s obligations set out as follows. The Customer:
4.2.1: shall provide all assistance required by BDL in connection with the obtaining of any necessary import licences or permits;
4.2.2: shall inform BDL of all relevant laws and regulations affecting the manufacture, sale, packaging and labelling of the Goods (Local Regulations) in force from time to time within any and all territories within which the Goods are to be sold and any prospective changes to such Local Regulations; and
4.2.3: warrants to BDL that the Goods comply with the Local Regulations in force from time to time.
4.3: The Customer shall indemnify BDL against all Losses (including any direct, indirect or consequential Losses, loss of profit, business, contract and chance and loss of reputation and goodwill and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by BDL arising out of or in connection with any claim made against BDL for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with BDL's use of the Specification. This clause 4.3 shall survive termination of the Contract.
4.4: BDL reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and BDL shall notify the Customer in any such event.
5. DELIVERY OF GOODS
5.1: BDL shall ensure that:
5.1.1: 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; and
5.1.2: it states clearly on the delivery note any requirement for the Customer to return any packaging material to BDL. The Customer shall make any such packaging materials available for collection at such times as BDL shall reasonably request.
5.2: BDL shall deliver the Goods CIF (Incoterms 2010) to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after BDL notifies the Customer that the Goods are ready and delivery of the Goods shall be deemed to have been completed accordingly in line with CIF (Incoterms 2010).
5.3: Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. BDL 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 BDL with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.4: If BDL 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. BDL 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 BDL with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
5.5: If the Customer fails to take delivery of the Goods within two Business Days of BDL notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by BDL's failure to comply with its obligations under the Contract in respect of the Goods:
5.5.1: delivery of the Goods shall be deemed to have been completed at 9.00 am on the second Business Day following the day on which BDL notified the Customer that the Goods were ready; and
5.5.2: BDL shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.6: If ten Business Days after BDL notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, BDL may resell or otherwise dispose of part or all of the Goods.
5.7: BDL may deliver the Goods by instalments, which may be invoiced 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.
6. QUALITY OF GOODS
6.1: Save that BDL shall not be liable for the suitability, working or performance of the Goods (which the Customer has satisfied itself in respect of), BDL warrants that on delivery the Goods and any Deliverables shall:
6.1.1: conform in all material respects with their description and any applicable Specification;
6.1.2: be free from material defects in design, material and workmanship; and
6.1.3: be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2: Subject to clause 6.3, BDL shall, at its option, repair or replace any defective Goods and any Deliverables, or refund the price of the defective Goods and any Deliverables in full if:
6.2.1: the Customer gives notice in writing to BDL within 14 days of discovery that some or all of the Goods and any Deliverables do not comply with the warranty set out in clause 6.1;
6.2.2: BDL is given a reasonable opportunity of examining such Goods and any Deliverables and BDL agrees with such assertions; and
6.2.2: the Customer (if asked to do so by BDL) returns such Goods and any Deliverables to BDL's place of business at the Customer's cost.
6.3: BDL shall not be liable for the Goods' and any Deliverables’ failure to comply with the warranty in clause 6.1 if:
6.3.1: the Customer fails to notify BDL in accordance with clause 6.2;
6.3.2: the Customer makes any further use of such Goods and any Deliverables after giving a notice in accordance with clause 6.2;
6.3.3: the defect arises because the Customer failed to follow BDL's (or any manufacturer’s) oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods and any Deliverables or (if there are none) good trade practice;
6.3.4: the defect arises as a result of BDL following any drawing, design or Specification or is in any way attributable to a breach of the Customer’s obligations in accordance with these Conditions;
6.3.5: the Customer alters or repairs such Goods and any Deliverables without the written consent of BDL;
6.3.6: the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6.3.7: the Goods and any Deliverables differ from their description and/or Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.4: Except as provided in this clause 6, BDL shall have no liability to the Customer in respect of the Goods' and any Deliverables’ failure to comply with the warranty set out in clause 6.1.
6.5: The terms of these Conditions shall apply to any repaired or replacement Goods and any Deliverables supplied by BDL.
7. TITLE AND RISK
7.1: The risk in the Goods and any Deliverables shall pass to the Customer on completion of delivery.
7.2: Title to the Goods and any Deliverables shall not pass to the Customer until the earlier of:
7.2.1: BDL receives payment in full (in cash or cleared funds) for the Goods and any Deliverables and any other goods that BDL has supplied to the Customer in respect of which payment has become due, in which case title to the Goods and any Deliverables shall pass at the time of payment of all such sums; and
7.2.2: the Customer resells the Goods and any Deliverables, in which case title to the Goods and any Deliverables shall pass to the Customer at the time specified in clause 7.4.
7.3: Until title to the Goods and any Deliverables has passed to the Customer, the Customer shall:
7.3.1: store the Goods and any Deliverables separately from all other goods held by the Customer so that they remain readily identifiable as BDL's property;
7.3.2: not remove, deface or obscure any identifying mark or packaging on or relating to the Goods and any Deliverables;
7.3.3: maintain the Goods and any Deliverables in satisfactory condition and keep them insured against all risks for their full price on BDL's behalf from the date of delivery;
7.3.4: notify BDL immediately if it becomes subject to any of the events listed in clause 16.2.2 to clause 16.2.4; and
7.3.5: give BDL such information relating to the Goods and any Deliverables as BDL may require from time to time.
7.4: Subject to clause 7.5, the Customer may resell or use the Goods and any Deliverables in the ordinary course of its business (but not otherwise) before BDL receives payment for the Goods and any Deliverables. However, if the Customer resells the Goods and any Deliverables before that time:
7.4.1: it does so as principal and not as BDL’s agent; and
7.4.2: title to the Goods and any Deliverables shall pass from BDL to the Customer immediately before the time at which resale by the Customer occurs.
7.5: If before title to the Goods and any Deliverables passes to the Customer the Customer becomes subject to any of the events listed in clause 16.2.2 to clause 16.2.4, then, without limiting any other right or remedy BDL may have:
7.5.1: the Customer's right to resell Goods and any Deliverables or use them in the ordinary course of its business ceases immediately; and
7.5.2: BDL may at any time:
7.5.2.1: require the Customer to deliver up all Goods and any Deliverables in its possession which have not been resold, or irrevocably incorporated into another product; and
7.5.2.2: if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods and any Deliverables are stored in order to recover them.
8. CUSTOMER PRODUCTS
8.1: Where the Customer provides BDL with any Customer Products in connection with BDL’s performance of the Services, it hereby agrees, acknowledges, warrants and undertakes (as the case may be) that:
8.1.1: it shall be responsible for the cost and risk of delivering them to BDL and for the avoidance of doubt that they shall be delivered DDP Incoterms (2010) to such delivery location as is notified to the Customer by BDL;
8.1.2: the risk of damage or loss to the Customer Products remains with the Customer at all times and that BDL shall not be required to insure them for any damage or loss;
8.1.3: the Customer Products comply with any and all Local Regulations;
8.1.4: it shall provide any and all documentation reasonably required by BDL in connection with them including but not limited to any Certificates of Analysis, GMO/TSE Statements and Material Safety Data Sheets;
8.1.5: any such documentation supplied to BDL in accordance with clause 8.1.3 is true, accurate and complete;
8.1.6: it has fully satisfied itself that BDL’s performance of the Services shall not have an adverse effect on the Customer Products arising out of any chemical reaction, deterioration or perishing and that where and to the extent that this occurs, agrees that BDL shall not be liable to the Customer in any way;
8.1.7: (where and to the extent that the Customer Products are artwork or electronic files) that:
8.1.7.1: such Customer Products are its own Intellectual Property, that they do not breach the Intellectual Property Rights of any third party and that their use is not in contravention of any law whatsoever;
8.1.7.2: BDL reserves the right to refuse the use of such Customer Products at its absolute discretion and without reason;
8.1.8: (where and to the extent that the Customer Products are packaging), that BDL:
8.1.8.1: requires any plastic packaging to have an Induction Heat Seal;
8.1.8.2: reserves the right to require a sample in advance; and
8.1.8.3: may refuse any packaging at its absolute discretion and without reason; and
8.1.9: (where and to the extent that the Customer Products are labels), that BDL:
8.1.9.1: requires any labels to be provided on a roll with left edging;
8.1.9.2: shall not be liable for any quality of appearance issues where the Customer signs off the final proof;
8.1.9.3: requires no less than a quantity of 105% of labels in comparison to the Deliverables;
8.1.9.4: application of the labels may result in damage or loss to the labels for which BDL shall not be responsible;
8.1.9.5: shall hold any excess labels following the completion of the Services at the Customer’s election will return these (at the Customer’s cost and risk) or otherwise destroy the same on a date falling on or about 6 months following the date of completion of the Services.
9. SUPPLY OF SERVICES
9.1: BDL shall supply the Services to the Customer and in accordance with any Specification in all material respects.
9.2: BDL shall use reasonable endeavours to meet any performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.3: In performing the Services, BDL:
9.3.1: shall keep the Customer appraised of any developments and/or differentials from the Specification, which BDL did not foresee as at the Commencement Date (Differentials). In the event of any Differentials, BDL shall advise the Customer of any proposed changes in the cost of providing the Goods and/or Services and provide the opportunity to the Customer as to whether to continue with any such additional costs; and
9.3.2: may, in advance of delivery of the Deliverables taking place, require the Customer to sign any documentation approving the final form of the Deliverables and packaging following which BDL shall be unable to make any further amendments.
9.4: BDL reserves the right to amend the 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 BDL shall notify the Customer in any such event.
9.5: Due to the nature of encapsulation, it is possible that in carrying out the Services there will be a quantity tolerance of +/- 10% and in which case, in the event that there is an:
9.5.1: overrun, the Customer shall be provided with the opportunity to purchase any additional Deliverables at a reduced rate, failing which they will be disposed of; or
9.5.2: underrun, the Customer may either receive a refund of the proportionate amount of the cost paid or a credit to its account relating to such underrun.
9.6: Clause 5 shall apply to the delivery of the Deliverables in the same way as if references to the Goods are substituted for the Deliverables.
9.7: BDL warrants to the Customer that the Services will be provided using reasonable care and skill.
10. CUSTOMER'S OBLIGATIONS
10.1: The Customer shall:
10.1.1: ensure that the terms of the Order and any other information it provides in accordance or connection with the Contract are true, complete and accurate in every respect;
10.1.2: co-operate with BDL in all matters relating to the Services;
10.1.3: provide BDL, its employees, agents, consultants and subcontractors, with access (as necessary) to the Customer's premises, office accommodation and other facilities as reasonably required by BDL to provide the Services;
10.1.4: provide BDL with such information and materials as BDL may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
10.1.5: 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;
10.1.6: comply with all applicable laws, including health and safety laws;
10.1.7: be wholly responsible for testing the Goods;
10.1.8: keep all BDL Materials at the Customer's premises in safe custody at its own risk, maintain BDL Materials in good condition until returned to BDL, and not dispose of or use BDL Materials other than in accordance with BDL's written instructions or authorisation; and
10.1.9: comply with any additional obligations as notified by BDL to the Customer from time to time.
10.2: If BDL'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 whether in contract, tort (including negligence), breach of statutory duty or otherwise (Customer Default):
10.2.1: without limiting or affecting any other right or remedy available to it, BDL 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 BDL's performance of any of its obligations;
10.2.2: BDL shall not be liable for any Losses sustained or incurred by the Customer arising directly or indirectly from BDL's failure or delay to perform any of its obligations as set out in this clause 10.2; and
10.2.3: the Customer shall indemnify BDL, keep BDL indemnified and hold BDL harmless on written demand for any Losses sustained or incurred by BDL arising directly or indirectly from the Customer Default.
11. CHARGES AND PAYMENT
11.1: Unless otherwise agreed between the parties, the charges to be paid for Goods and/or Services shall be:
11.1.1: the price set out in the Order;
11.1.2: exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer; and
11.1.3: paid by the Customer to BDL in advance of the provision of any Goods and/or Services.
11.2: BDL reserves the right to:
11.2.1: 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;
11.2.2: 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 BDL that is due to:
11.2.2.1: any factor beyond the control of BDL (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
11.2.2.2: any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
11.2.2.3: any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give BDL adequate or accurate information or instructions in respect of the Goods.
11.3: Where the Customer is invoiced on a credit terms basis, the Customer shall pay each invoice submitted by BDL:
11.3.1: within 30 days of the date of the invoice or in accordance with any credit terms agreed by BDL and confirmed in writing to the Customer; and
11.3.2 in full and in cleared funds to a bank account nominated in writing by BDL, and time for payment shall be of the essence of the Contract.
11.4: 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 BDL to the Customer, the Customer shall, on receipt of a valid VAT invoice from BDL, pay to BDL 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.
11.5: If the Customer fails to make a payment due to BDL under the Contract by the due date, then, without limiting BDL's remedies under clause 16 (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 11.5 will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
11.6: Notwithstanding the presence of any disputes, 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).
12. INTELLECTUAL PROPERTY RIGHTS
12.1: 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 including the Customer Products) shall be owned by BDL.
12.2: BDL 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 purely in its business capacity.
12.3: The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 12.2.
12.4: The Customer grants BDL a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to BDL for the term of the Contract for the purpose of providing the Services to the Customer.
13. DATA PROTECTION AND DATA PROCESSING
13.1: The Customer and BDL acknowledge that for the purposes of the DPA, the Customer is the Data Controller and BDL is the data processor in respect of any Personal Data.
13.2: BDL shall process the Personal Data only in accordance with the Customer's instructions from time to time and shall not process the Personal Data for any purposes other than those expressly authorised by the Customer.
13.3: BDL shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
13.4: Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
13.5: The Customer agrees to indemnify BDL, keep BDL indemnified and hold BDL harmless against all Loses due to any failure by the Customer or its employees or agents to comply with any of its obligations under this clause 13.
13.6: The Customer acknowledges that BDL is reliant on the Customer for direction as to the extent to which BDL is entitled to use and process the Personal Data. Consequently, BDL will not be liable for any claim brought by a Data Subject arising from any action or omission by BDL, to the extent that such action or omission resulted directly from the Customer's instructions.
13.7: BDL may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractor's contract:
13.7.1: is on terms which are substantially the same as those set out in these Conditions; and
13.7.2: terminates automatically on termination of the Contract for any reason.
14. CONFIDENTIALITY
14.1: The Customer undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of BDL, except as permitted by clause 14.2.
14.1: The Customer may disclose BDL’s confidential information:
14.2.1: 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 14; and
14.2.2: as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3: The Customer shall not use BDL’s confidential information for any purpose other than to perform its obligations under the Contract.
15. LIMITATION OF LIABILITY AND INDEMNITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
15.1: Nothing in these Conditions shall limit or exclude BDL's liability for:
15.1.1: death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
15.1.2: fraud or fraudulent misrepresentation;
15.1.3: breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
15.1.4: breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
15.1.5: defective products under the Consumer Protection Act 1987.
15.2: Subject to clause 15.1, BDL 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:
15.2.1: loss of profits;
15.2.2: loss of sales or business;
15.2.3: loss of agreements or contracts;
15.2.4: loss of anticipated savings;
15.2.5: loss of use or corruption of software, data or information;
15.2.6: loss of or damage to goodwill; and
15.2.7: any indirect or consequential loss.
15.3: Subject to clause 15.1, BDL's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract, shall be limited to the total charges paid in cash or cleared funds by the Customer to BDL under the Contract.
15.4: 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.
15.5: The Customer shall indemnify BDL, keep BDL indemnified and hold BDL harmless against any and all Losses suffered or incurred by BDL arising out of the Customer’s acts or omissions under the Contract, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise and including any indirect, special or consequential Losses, loss of profit, loss of business, loss of chance, loss of contract, loss of goodwill and loss of reputation,
15.6: This clause 15 shall survive termination of the Contract.
16. TERMINATION.
16.1: Without affecting any other right or remedy available to it, BDL may terminate the Contract by giving the Customer 5 Business Day's written notice.
16.2: 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:
16.2.1: 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 5 Business Days after receipt of notice in writing to do so;
16.2.2: 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;
16.2.3: 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; or
16.2.4: 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.
16.3: Without affecting any other right or remedy available to it, BDL may terminate the Contract with immediate effect and without liability to the Customer by giving written notice to the Customer if:
16.3.1: the Customer fails to pay any amount due under the Contract on the due date for payment; or
16.3.2: there is a change of control of the Customer.
16.4: Without affecting any other right or remedy available to it, BDL may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and BDL 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 16.2.2 to clause 16.2.4, or BDL reasonably believes that the Customer is about to become subject to any of them.
17. CONSEQUENCES OF TERMINATION
17.1: 17.1 On termination of the Contract:
17.1.1: the Customer shall immediately pay to BDL all of BDL's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, BDL shall submit an invoice, which shall be payable by the Customer immediately on receipt;
17.1.2: the Customer shall return all of BDL Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then BDL 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
17.3: the Customer shall at its own cost arrange the collection of any Customer Products in BDL’s possession and agrees and acknowledges that where it fails to do so within a period of 5 Business Days, BDL is granted the right to destroy or otherwise dispose of such Customer Products.
17.2: 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.
17.3: 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.
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. GENERAL
19.1: Assignment and other dealings
19.1.1: BDL 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.
19.1.2: 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 BDL.
19.2: Notices.
19.2.1: 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 email to the address specified in any pre-contract documentation.
19.2.2: 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 email, at 9.00 am on the next Business Day after transmission.
19.2.3: 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.
19.3: 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.
19.4: 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.
19.5: 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.
19.6: Entire agreement.
19.6.1: 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.
19.6.2: 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) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
19.6.3: Nothing in this clause shall limit or exclude any liability for fraud.
19.7: 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.
19.8: 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).
19.9: 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 England and Wales.
19.10: Jurisdiction. 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.
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