TERMS & CONDITIONS
- GENERAL TERMS AND CONDITIONS -
These Terms govern your use of Airlinen products and services in your order form. “We”, “our”, “Company” and “Airlinen” means Airlinen in the Order Form and, where applicable, its affiliates; “you”, “your” and “Customer” means the Client identified in the order form. Your order form identifies the products and services, the quantities, charges and other details of your order. The Order Form also refers to documents which may apply to the products or services you selected. The Order Form, any applicable referenced documents as updated by us from time to time and these Terms constitute the complete agreement and supersede any prior discussions or representations regarding your order, unless fraudulent. Other terms and conditions you incorporate in any purchase order or otherwise are excluded.
"Conditions" means the general standard terms and conditions set out in this document (°Standard Terms") and (unless the context otherwise requires) includes the Special Terms and any additional conditions specific to the Contract set out in the Order Form and agreed in writing between You and ourselves.
"Contract" means the contract for the Works (including any subsequent repeat Contract with You).
"Customer Material" means any documents or other materials, and any data or other information provided by or on behalf of You relating to the Contract or the Works.
“Company” Airlinen Limited
“Communication Portal” the preferred platform used to communicate with the customer as specified in the Order Form
“Cut Off Time” Current Cut Off time for placing orders as specified in your Order Form
“Damaged” Items of linen which are soiled or ripped
"Depreciation Charges" means a depreciating valuation of the Goods as set out in the Order Form
"Goods" mean the Goods (including any installment of the Goods or any individual item of the Goods) which we are to supply on hire to You from time to time in accordance with the Contract.
“Initial Term” the Term that is specified in your Order Form
"Installation Date" means the date specified in the Order Form or the date of first commencement or supply of the Works whichever is the [earlier]
"IPR" means intellectual property rights such as patents, patent applications, utility models, know-how, trademarks, internet domain names, service marks, trade mark applications, trade names, registered and unregistered design right, copyright, database right, or other similar intellectual or commercial right whether registered or unregistered, licences to any of the foregoing rights, and other similar rights in whatever jurisdiction.
"Minimum Term" means two years from the Installation Date unless otherwise specified in the Order Form.
“Order” means order placed as expressed in your Order Form
"Rental Charges" means the periodic charge for the Works as set out in the Order Form and
varied from time to time, which in the case of fluctuating quantities of Works shall be a Minimum Charge payable notwithstanding that the Works provided in the period are less than the minimum order stated in the Order Form .
“Reporting Time” One hour window where all Damaged items must be reported to Airlinen for the purposes of replacement or refunds
"Replacement Goods" means Goods (including spare parts) made available under the Contract in replacement for Goods previously made available under the Contract which will be either new or partly used goods of a specification as near as reasonably possible to that of the original Goods at our sole discretion according to availability.
"Residual Value" means the value of the Goods at the date of termination of the Contract
"Services" means the services (including any installment or partial supply) which we are to supply (or procure the supply) in accordance with the Contract.
"Site" means the premises upon which the Works are to be carried out and/or supplied as specified in the Order Form and/or Communication Portal
"Designated Point" means a specific location at the Site specified in your Order Form and/or Communication Portal.
“Subsequent Terms” an automatic Renewal Term of the Initial Term specified in your Order Form.
"Supply Date" means the date of actual supply of an individual item of the Goods during the term of the Contract.
"Washlife" means a minimum of 36 months for each of the Goods to which it applies (unless specified otherwise in the Order Form ) commencing from the Supply Date for the relevant item.
“Works" means the hire of the Goods and/or the supply of the Services subject to the Conditions (including any Replacement Goods).
"Works Material" means any Documents or other materials, and any data or other information provided by us relating to the Works.
References to “the Parties” shall include their respective successors and assignees.
“Customer” means the party using the supply of service, hiring the goods or purchase or purchase of goods
“Supplier” means the party supply the service, selling the goods and hiring the goods to You
“Rolling 30 Day Contract” A contract that last for a minimum Term of 30 days from the effective date, with the intention of it being renewed for another 30 days unless and otherwise a notice in accordance with the Agreement has been provided within the relevant notice period.
“24 Month Contract” A contract that has an initial term of 24 months from the effective date.
The headings are for reference purposes only and do not limit or otherwise affect the interpretation of the Conditions.
Each of the Clauses and sub-clauses of the Conditions shall be construed as separate and severable. If any provision in the Contract is held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such provision or part shall, to that extent, be deemed not to form part of the Contract but the legality and enforceability of the remainder of the Contract shall not be affected.
(a) Assignment. You may not assign or transfer the agreement to anyone else without our prior written consent. We will provide you with written notice if we assign or transfer the agreement as part of our business reorganisation, which we may do provided the products or services will not be adversely affected.
(b) Feedback. Any comments, suggestions, ideas or recommendations you provide related to any of our products or services are our exclusive property.
(c) Amendment. We may amend this agreement from time to time by giving you at least 5 days’ written notice. If we make material changes that adversely affect you, you may request good faith negotiations regarding the. If the amended Terms are not agreed before their effective date, you may terminate the agreement by providing written notice within 5 business days.
(d) Enforceability. The agreement will always be deemed modified to the minimum extent necessary for it to be enforceable, unless modification fundamentally changes the agreement.
(e) Non-Solicitation. Airlinen is an independent contractor. You must not directly or indirectly employ or engage or solicit for employment or engagement any personnel of Airlinen during the term and for 12 months thereafter, this includes any delivery drivers, cleaners or any third parties which you may become acquainted with through working with Airlinen. Employment resulting from a general public advertisement or search engagement not specifically targeted at the relevant personnel is not precluded.
(f) Headings and Summaries. Headings and summaries shall not affect the interpretation of these Terms.
(g) Waiver. Neither of us waives our rights or remedies by delay or inaction.
(h) Equitable Remedies. Each of us may seek immediate relief to restrain breaches of the agreement.
(i) Governing Law. The governing law and jurisdiction of the agreement are specified in the Order Form.
(j) Precedence. In the event of any conflict within the agreement, the descending order of precedence is: the Order Form, these general terms and conditions, the referenced documents and or annexes.
2. RENTAL CHARGES
2.1 Rental Charges quoted are based on the cost of materials, labour, transport, duties, levies, currency exchange rates and statutory obligations ruling at the date of quotation. We shall also be entitled to increase Rental Charges in the event of any error or omission on the part of us, our employees or agents affecting the Rental Charges or their calculation and as provided by clauses 2.3 and 2.4 below. We may also charge any additional sums which are agreed between us and You for the Works or which, in our sole discretion, are required as a result of Your instructions or lack of instructions, the inaccuracy of any Customer Material or any other cause attributable to You.
2.2 Unless otherwise agreed in writing delivery shall mean delivery to the Designated Point at the Site as stated in the Communication Portal and/or Order Form at the time the order is placed; all Rental Charges are inclusive of insurance, carriage, any costs of dismantling, loading, unloading and installation. Any additional charges shall be for Your account.
2.3 Rental charges are applicable on delivery of rented items
2.4 All rental items which are delivered as a ‘set’ must be returned as a set. Any items not returned will be assumed to be held at premises and will be charged as such in the next invoicing period
2.5 the Company reserves the right to vary its charges to You at any time or times during this Agreement giving not less than 28 days’ notice and having regard to all relevant circumstances including (without limitation) any changes in labour, materials, utility, fuel or any other costs.
The Rental Charges and all other payments shall be in Pounds Sterling and by direct debit mandate unless otherwise agreed plus VAT.
3. OWNERSHIP, CONTROL AND POSSESSION
3.1 The Goods shall remain our property at all times and You is responsible for the Goods in his custody at any time including loss by Fire, Explosion, Theft and other insurable risks. We shall advise You upon request from time to time of the insurance value of such articles.
3.2 The Customer hereby agrees and covenants as follows:-
3.2.1 not to interfere or permit interference with the Goods or any part thereof or to remove or permit the removal of any identification registration or other identifying marks or numbers on the Goods;
3.2.2 To take reasonable care of the Goods and to use them for the proper purpose (should we not define purpose?) as previously agreed with us;
3.2.3 Not to make or cause to be made any modifications, maintenance, repair or adjustments to the Goods without our written consent;
3.2.4 Not to launder or dry-clean or have laundered or dry-cleaned other than by us any Goods nor use any of the Goods other than for the purposes of Your business carried out at the Site unless otherwise agreed;
3.2.5 Not to allow the Goods to become permanently spoiled or defaced and to take every reasonable precaution to prevent the Goods becoming infected or contaminated and to notify us immediately of any accidental infection or contamination.
3.2.6 Not to jeopardise the Goods or to permit them to be placed in jeopardy;
3.2.7 To permit us and any person duly authorised by us at all reasonable times to inspect and stock-check the Goods and for that purpose to have access to any vehicles or premises where the Goods may be situated. The results of such inspection and stock-checking by us shall be binding on You except in case of manifest error;
3.2.8 To keep the Goods at all times during the period of rental in his possession and control and not to remove or to permit the removal of the same from the Site without our consent in writing;
3.2.9 To notify us forthwith of any change of address and, upon our request to notify us of the location of the Goods;
3.2.10 not to sell assign let pledge mortgage charge encumber part with possession of or otherwise deal with the Goods or any interest therein nor to assign the benefit of the Contract nor to create or to permit the creation of any lien on the Goods;
3.2.11 to keep the Goods free of any distress, execution or other legal process;
3.2.12 to insure the Goods forthwith and to keep the same insured during the currency of the Contract to their full replacement value with a reputable insurance company against loss or damage by accident fire and theft and such other risks, if any, against which it is usual to insure the Goods or against which we reasonably require insurance;
3.2.13 to notify us immediately of any loss of, or material damage to, the Goods;
3.2.14 to pay punctually all taxes rates charges assessments and other outgoings payable in respect of the Goods or the use thereof and in the event of You making default under this sub clause, we may make all or any such payments and recover the amount thereof from You on demand;
3.2.15 to permit us or any duly authorised person to have access to and/or to remove the Goods or any part thereof.
3.2.16 Rental Items must not to be kept in possession for longer than the 21 consecutive days and must be returned for laundering .
3.3 We shall have the right to dismantle the Goods or detach the Goods from any items in which they may have been incorporated without prejudice to any of our other remedies.
3.4 The Customer shall indemnify us against all costs and liabilities which we incur in retaking possession of the Goods (or any part thereof) or in exercising any of our rights under this Clause 3 including without limitation any liability in respect of any damage caused to premises in such retaking of possession and removal of Goods which it was not reasonably practicable to avoid.
3.5 The Customer is responsible for any violation of law or regulation, or violation of our or any third party rights related to (i) your combination of our products, services or other property with any materials; (ii) your modification of any of our goods; (iii) your failure to commit to updates we have provided to you; or (v) your breach of the agreement. You are also responsible for claims brought by third parties receiving the benefit of our products and services through you. You must reimburse us if we suffer losses in the circumstances set out in this clause.
3.6 The Customer shall be entitled to submit to us for laundering and repair each week or at other intervals agreed in writing a number of Goods which will not exceed the number of days specified in the Order Form. Any additional articles sent in for launder and/or repair will be charged at the agreed rate.
3.7 The Customer must be satisfied upon receipt the Goods and Rental Items under this Contract are fit for the purpose for which they are required and will remain serviceable and satisfactory for commercial laundering for their Washlife (unless stated otherwise in the Order Form).
4. SUBSEQUENT VARIATION OR CANCELLATION
4.1 In the event that a Contract is with our approval varied as a result of Your request we shall be at liberty to vary the Rental Charges to take account of any changes to the Works or cost to ourselves.
4.2 Change of Site: In the event of You wishing to alter the Designated Point or Site to an alternative location and we are willing to provide the Works to that alternative Designated Point or Site then this Contract shall continue in effect by amendment accordingly. If we are unwilling to provide the Goods or Services to the alternative Designated Point or Site then this Contract may be terminated by us.
5. TERMS OF PAYMENT
5.1 Payment of Rental Charges is due (without deduction or set off other than agreed discount or retention) as set out below, notwithstanding that commencement or supply of the Works may not have taken place. Rental Charges will begin to accrue from the date the order is placed on the Communication Portal. Receipts for payment will be issued only upon request.
5.2 Unless otherwise expressly agreed with You payment for the Works shall be made net (no settlement discount being allowed) by automatic payment set up. Upon placing your order your nominated credit or debit card will be charged within 5 days. A receipt in the form of an email will be provided for each order should you request this.
5.3 If full payment of any sums due is not received by the due date for payment (without limiting any other rights we may have) we shall have the right at our option to:-
5.3.1 charge interest (both before and after judgment) from the date by which payment should have been made until the outstanding amount is paid in full on the unpaid amount on a daily basis at the Late Payment of Commercial Debts rate from time to time in force unless otherwise specified; and
5.3.2 Suspend any further Works under the particular Contract or any other contract or accepted order until payment is made in full; and
5.3.3 Cancel the particular Contract in relation to such further Works and any other contract with You or accepted order; and 5.3.4 Appropriate any payment made by You to such of the Works (or any other Contract between You and us) as we think fit (notwithstanding any purported appropriation by You); and
5.3.5 dis apply any agreed special payment arrangements in which case the payment due may be increased accordingly.
5.4 No deduction shall be made by You in respect of any set-off or counter-claim howsoever arising; and no time or indulgence granted by us to You shall prejudice any right or remedy which we may have in any manner whatsoever.
5.5 We may invoice You for the balance of the Rental Charge on or at any time after commencement or delivery of the Works unless You wrongfully fail to take delivery or permit commencement of the Works, in which event we may invoice You for the balance of the Rental Charge any time after we have tendered delivery or commencement of the Works
5.6 Without prejudice to any other rights we may have, we shall be entitled to set off any sums due from us to You against any sums due to us from You.
5.7 Invoices must be paid within the agreed due date specified within the Payment Terms on the Order Form
5.8 Unpaid invoices will incur a late payment fee of £25 for every five working days the invoice remains outstanding subject to statutory charges that may apply to you. Method of payment will be expressed within your Order Form.
6. DELIVERY & ACCESSIBILITY
6.1 Any dates and times quoted for delivery or commencement of the Works are approximate only and we shall not be liable for any delay in delivery or commencement however caused. Time for delivery or commencement shall not be of the essence unless previously agreed by us in writing. We may deliver or commence the Works in advance of the quoted date upon giving reasonable notice to You.
6.2 Where the Works are to be delivered or carried out in installments, each delivery shall
constitute a separate Contract and failure by us to deliver any one or more of the installments in accordance with these Conditions or any claim by You in respect of any one or more installments shall not entitle You to treat the Contract as void. If You fail to take delivery or commencement of the Works within the time agreed or fails to give us adequate instructions for delivery or commencement in sufficient time for delivery/commencement (otherwise then due to any cause beyond Your reasonable control or our fault) then, without prejudice to any other remedy available to us, we may store Goods until actual delivery without liability at the cost and risk of You and charge You for the reasonable cost (including insurance) of storage or sell the Goods at the best price readily available and (after deducting all reasonable storage and selling expenses) account to You for the excess over the Rental Charge under the Contract or charge You for any shortfall below the Rental Charge under the Contract. We reserve our right to seek compensation or any other remedy for other costs incurred in consequence of any such delay or failure.
6.3 It is your responsibility to ensure we have the correct information for carrying out each delivery and should we not be able to deliver or fail the delivery because our agent could not gain access you will be charged the minimum order value as stated in your order form.
6.4 Where delivery or provision of the Works is made by us or our agents You will provide at its cost full safe and proper means of access to the Site and the Designated Point for us and our agents and if appropriate any vehicles used by us or our agents and carriers and shall provide adequate free working space and such other facilities as may be necessary for the fulfillment of the Contract. If You fail to provide suitable means or facilities we shall be entitled to charge You for any additional costs and time thereby incurred or spent by us.
6.5 Unless we are notified to the contrary by email on no later than the Cut Off Point from the time of delivery and such notification is confirmed within 24 hours thereafter the Works shall be deemed to have been accepted by You as being in accordance with the Contract. Upon receipt of such notification we shall take all reasonable steps to rectify the discrepancy or complaint speedily. You shall not be entitled to withhold payment of all or any of the Rental Charges while any claim is being investigated by us.
6.6 When an Event such as a Public Holiday, street closures, demonstrations or any other event which falls outside of Airlinen’s control coincides with the normal day of delivery we will be under no obligation to provide the Works to You on that day or for that week but we will use our reasonable endeavours to arrange or re-arrange deliveries in the weeks before and after the Event in an effort to provide continuous service to You.
Rental Charges will not be suspended during closure or inaccessibility of the Designated Point or Site or Your business due to holidays or any other Event
6.7 Risk of damage to or loss of the Goods shall pass to You at the time of delivery or if You wrongfully fails to take delivery of the Goods at the time when we have tendered delivery of the Goods.
Delays or changes to deliveries
6.8 Airlinen will not be responsible for any loss of earnings to you, or poor ratings made about you, should your delivery be late or not delivered due to elements outside of our control.
6.9 The Client is responsible for ensuring there is adequate access or the appropriate personnel at the property to receive the linen from our driver.
6.10 Should there be no one at the delivery address, all items will be left outside in a location as confirmed by the Client in writing within the relevant Communication Portal.
6.11 Any loss or damage to such items left outside are the complete responsibility of the Client.
Changes to your Order
6.12 Changes to an Order made at any time before the Cut Off set out in this Agreement will be accepted at no extra cost
6.13 Changes to an Order which are requested after the Cut Off time will incur a £2.50 + VAT charge per bed pack ordered
6.14 Full refunds will be provided on items which have been delivered and are reported Damaged if such items are reported within the Reporting Time frame
6.15 If items are replaced within an hour of being reported, there will be no charge for replacement items and there will be no refund for items damaged
7. DURATION AND TERMINATION
7.1 (a) Term. The term for the products and services are described in your order form. If either of us does not wish to renew, they must provide the other with at least 30 days’ written notice before the end of the Initial Term or Subsequent Term.
(b) Suspension. We may on notice suspend our services or other property, or terminate the agreement, (i) if required to do so by a third party provider, court or regulator; (ii) if you become or are reasonably likely to become insolvent or affiliated with one of our competitors; or (iii) if there has been or it is reasonably likely that there will be: a breach of security; a breach of your obligations under the agreement; or a violation of third party rights or applicable laws, rules or regulations. Our notice will specify the cause of the suspension or limitation and if the cause of the suspension or limitation is reasonably capable of being remedied, we will inform you of the actions you must take to reinstate the service. If you do not take the actions or the cause cannot be remedied within 30 days, we may terminate the agreement. Charges remain payable in full during periods of suspension or limitation arising from your action or inaction.
(c) Termination. We may terminate the agreement, in whole or in part, in relation to a product or service which is being discontinued, on 30 days’ written notice. Either of us may terminate the agreement immediately upon written notice if the other commits a material breach and fails to cure the material breach within 30 days of being notified to do so. Unless we terminate for breach or insolvency, pre-paid charges will be refunded on a pro-rated basis.
(d) Effect of Termination. Except to the extent we have agreed otherwise, upon termination, all your contractual rights end immediately and each of us must return all property of the other or destroy it and, if requested, confirm this in writing. Termination of the agreement will not (i) relieve you of your obligation to pay us any amounts you owe up to and including the date of termination; (ii) affect other accrued rights and obligations; or (iii) terminate those parts of the agreement that by their nature should continue.
7.2 Cancellation in whole or in part before the Installation Date by You will normally only be accepted where we can cancel any relevant order placed with our own supplier; and on terms that a cancellation charge is paid by You to cover all expenses and charges incurred by us and our loss of profit on the Contract.
7.3 You may cancel or reschedule an order free of charge at any point before the Cut Off time.
7.4 You will incur a £10 cancellation fee for all Orders cancelled or rescheduled after your agreed Cut Off time.
7.5 In the case of any breach or non-observance of any of these Conditions by You or in case of force majeure or any change of Site or control of You (within the meaning of s416 ICTA 1988) without our prior written approval or if the commercial return for the Company is not viable or if You becomes insolvent or in our opinion is likely to go into bankruptcy receivership administration or liquidation or makes default in or commits a breach of the Contract we may (without prejudice to our rights which may have accrued up to the date of termination) either:
7.5.1 Forthwith on written notice to You (including, if appropriate in our opinion, a period sufficient to enable remedy of any default) suspend all or any part of the Works or terminate the Contract without incurring liability to You; or
7.5.2 Give to such administrator, receiver, liquidator or other such officeholder the option of carrying out the Contract subject to their providing sufficient guarantee for the performance of the Contract.
7.6 On termination of the Contract You shall immediately return to us in good and serviceable condition all Goods or pay a sum equal to the price of new Replacement Goods for any Goods not so returned.
7.7 On termination of the Contract under clause 7.1 above You shall on demand or within 14 days of the date of termination whichever is the sooner pay to us all arrears of Rental Charges, interest and any other charges or sums due under this Agreement, and the Residual Value.
7.8 Cancellation in whole or in part on or after the Installation Date or termination under clause 7.1 shall be without prejudice to any other right or remedy we may have in respect of the breach concerned (if any) or any other breach including, without limitation, recovery of all sums which would otherwise be due had the Contract not been so terminated.
7.9 In the event of You failing to comply with clause 7.4 above we shall be entitled without notice and without prejudice to any other remedies to retake possession of the Goods.
8.1 (a) Client Obligations. If you order services, you must provide reasonable access to your sites, equipment and
systems and ensure the health and safety of our personnel on your premises and full cooperation from your qualified and
experienced personnel as reasonably required. You must (i) provide detailed, accurate and sufficiently complete information,
specifications and instructions; (ii) ensure you are permitted to allow us to access the Site for such services; and (iii) perform any additional obligations specified in your Order Form. We will not be liable under the agreement to the extent our
failure is caused by you not performing your obligations on time. If reasonably requested, you must make authorized personnel
available to agree on the impact of any failure or delay by you, and you must not unreasonably withhold or delay your consent to any consequential changes to the agreement.
(b) Changes. Either of us may make written (including email) requests to change any aspect of the services, provided that no change will take effect unless and until we have each signed a formal change order. You must reasonably assist
us in assessing your change requests and, if we agree in principle, we will without undue delay prepare a formal change
order detailing the scope and impact of the change and any consequential changes required to the agreement for our joint
review and approval.
(c) Acquired Knowledge. We may develop future materials and we may freely use our general knowledge, skills and experience, and any ideas, concepts, processes, know-how and techniques developed by us while performing the services, provided we do not use your confidential or other proprietary information.
(d) Site Rules. We will take reasonable steps to ensure that while on your Site our personnel comply with reasonable security,
health and safety and confidentiality requirements that are notified to us in advance.
9. FORCE MAJEURE
9.1 Each of us performs the agreement subject to interruption and delay due to causes that cannot be reasonably controlled by us, such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labour dispute, inability to obtain necessary supplies, and the like.
10. WARRANTIES AND LIABILITY
10.1 We warrant to You that:
10.2 The Services will be provided using reasonable care and skill and as far as reasonably possible, for the Term specified in your Order Form.
10.3 The Goods to be supplied on hire by us will be of satisfactory quality for normal commercial use and laundry (if applicable). Where we supply any goods supplied by a third party, we do not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise.
10.4 Losses of or damage to the Goods other than fair wear and tear occurring whilst in the custody of You will be made good by us at the expense of You. Without limitation we accept no liability for inconvenience or financial loss sustained by You as a result of unavoidable delays in replacing or repairing such lost or damaged Goods and further reserve the right to replace such lost or damaged Goods with Replacement Goods. The charge to You for Replacement Goods provided under this clause shall be the full current new price of articles. There are clauses which we can add here from the other document “Contract Additions”. We shall have no liability to You or any third party for any loss, damage, costs expenses or other claims for compensation arising from any Customer Material or instructions supplied by You which are incomplete, incorrect, inaccurate. Illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of You.
10.5 If at all and subject to the validity of clause 10.4 above the entire liability of Airlinen (and of any of Airlinen’s third party providers) for all claims arising out of or in connection with the agreement, including for negligence, will not exceed the amount of any actual direct damages up to the amounts payable in the prior 12 months for the product or service that is the subject of the claim.
10.6 Our obligation under this Warranty shall be to correct repair or replace free of charge any Works which are shown to our satisfaction to have been defective or at our option make a cash settlement provided that notice of such defects and satisfactory proof thereof is given by You immediately within one hour of delivery of the relevant Works being supplied and provided that any Goods have only been used for the purposes for which the Goods were manufactured and in accordance with the Contract. This may not be in our favour and we can perhaps replace it with
10.7 Save as stated in this Clause 10.6, we shall be under no liability for direct or indirect or consequential loss of profits, loss of anticipated savings, remedial costs and loss of staff time or any indirect, special, consequential or other loss or damage of whatsoever kind or howsoever caused as a result of any Works supplied being lost, damaged, defective or not in accordance with any Contract or as a result of anything done or omitted in connection with any Works including any breach by us of any fundamental term of any Contract and our liability under this Clause shall be in lieu of and to the exclusion of any liability, condition, guarantee, warranty, term undertaking or representation whether express or implied, statutory or otherwise and shall be limited to the lesser of:
10.8 The annual value of the Works supplied under the Contract (or lesser term if the Contract is of shorter duration) to which any claim relates; or
10.9 The amount received by us in relation to the liability claimed under any relevant liability insurance currently held by us.
10.10 notwithstanding anything contained in the last foregoing paragraph, our liability in respect of any Goods not manufactured by us, but supplied by us shall be to give You the benefit of any manufacturer's guarantee or other rights (if any) which are available to us against the manufacturer or other supplier of such Goods.
10.11 Nothing contained in this Clause shall exclude:-
10.12 Any liability for breach of our implied undertakings as to title.
10.13 Where You deal as a consumer (defined by the Unfair Contract Terms Act 1977) any liability for breach of its implied undertakings as to conformity of goods with description or sample or as to their quality or fitness for a particular purpose.
10.14 Any liability arising from our negligence causing death or personal injury;
10.15 Any liability arising from fraudulent misrepresentation.
10.16 The Customer recognises that the limitation of liability contained in this clause is reasonable in that the Rental Charges quoted by us are dependent upon such limitation being incorporated in the Contract, and that we may have insurance cover which covers some or all of the losses purported to be excluded herein, but that there are legitimate business reasons for still excluding such liability, including (but not limited to) the maintenance of a clean insurance claims record.
10.17 We are not liable under this Warranty (or any other warranty, condition or guarantee) if the total Rental Charges due under the Contract have not been paid by the due date for payment.
10.18 Claims must be brought within 12 months of them arising.
10.19 We will not be responsible if our product or service fails to perform because of (i) your actions or inaction (other than proper use of the product or service), such as failing to follow instructions or adhering to the minimum recommended requirements; (ii) changes you make that would affect us to perform our service or provide our products; (iv) your failure to implement and maintain proper and adequate security, health and safety for any or all sites; (v) your failure to amend any issues as a result of our feedback we have provided to you; or (vi) other causes not attributable to us. If we learn that our product or service failed because of one of these, we reserve the right to charge you for our work in investigating the failure at our then currently applicable rates.
11. PERFORMANCE AND DRAWINGS ETC.
11.1 All particulars given by us relating to performance dimensions capacity output consumption
and weight of any Works and all illustrations descriptions specifications and drawings are given as accurately as possible but are approximate only and all such material contained in brochures, catalogues, price lists, and other advertising matter is intended merely to present a general idea of the Works described therein and none of such material shall form part of the Contract and Works may vary slightly.
11.2 All Works supplied are subject to a tolerance of plus or minus five percent (5%) of the quantity ordered and we shall be deemed to have fulfilled the Contract if the Works supplied fall within this tolerance.
12.1 Any error or omission in any document or information issued by us, including (without limitation) price lists, quotations or invoices, may be corrected by us without liability.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 We shall retain the exclusive property and reserve the IPR in all Works Work Materials and other Documents supplied or produced to You in connection with any Contract or prospective Contract. All communications in connection with any Contract or intended Contract including (without [imitation, pricing and product information) and all arrangements for the inspection of Goods and/or facilities shall be regarded as strictly confidential between us and shall not be divulged to any other person firm or company without our prior written consent.
13.2 The Customer agrees to indemnify us against all third party claims including costs, in respect of any Customer Material and Works in accordance with any specification design information equipment or instruction given by or on behalf of You and whether relating to the infringement or the alleged infringement of IPR or otherwise.
14. DATA PROTECTION
15. ASSIGNMENT AND SUB-CONTRACTING
15.1 Other than as provided in these Conditions the Contract is between us and You as principals and the rights and obligations of You may not be assigned, sub-contracted or otherwise disposed of without our consent. We may assign or transfer all or any of our rights and obligation under the Contract without consent and perform or delegate any of our obligations or exercise any of our rights by any agents or subcontractors appointed by us in our absolute discretion for the purpose. You agree to take all steps necessary to give effect to any such assignment, transfers or delegation or exercise, including novation reasonably required by us.
16.1 Any notice given under this Agreement shall be in writing and shall be delivered or sent by pre-paid registered post or email to the address of the relevant party as set out in the Order Form, or to such address within the United Kingdom as subsequently notified to the other party/ies. In the case of post, the notice shall be deemed received 48 hours after posting, and if by email within 12 hours of sending provided no notice of delivery failure has been received.