This page (together with the documents referred to on it) sets out the terms and conditions on which we supply any of the products and/or services listed on our website www.zenithcs.com (our “website”) to you. You should print a copy of these terms and conditions (“Terms of Supply”) for future reference. Please read these Terms of Supply carefully before ordering any goods and/or services from us. Your attention is in particular drawn to the provisions of clause 11.4.
In these Terms of Supply: “ you ”, “ your ” or similar expressions mean the person, firm or company who purchases the products and/or services from us; and “ Zenith “, “ we ”, “ us ” or “ our ” or similar expressions mean ZENITH HYGIENE GROUP PLC a limited company registered in England and Wales under company number 03199148, whose registered office is at Zenith House, A1(M) Business centre, Dixons Hill Road, Welham Green, Hertfordshire AL9 7JE. Our main trading address is the same as our registered office. Our VAT number is GB 859 9642 53.
Please click on the button marked "I Accept" at the end of these Terms of Supply if you accept them. Please understand that if you do not accept these Terms of Supply, you will not be able to order any products and/or services through our website.
In accepting these Terms of Supply YOU warrant and REPRESENT TO US that:
WE DO NOT ACCEPT ORDERS FROM PEOPLE RESIDENT OR ACCESSING OUR WEBSITE FROM OUTSIDE THE SERVICED TERRITORIES
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“Acknowledgement Slip” has the meaning given in clause 4.2;
“Affiliate” means in relation to any body corporate (i) a parent undertaking (within the meaning of section 1162 of the Companies Act 2006) of that body corporate; or (ii) any subsidiary undertaking (within the meaning of that section) of that body corporate or of any such parent undertaking;
“Agreement” means the agreement between you and us for the sale and purchase of the Products, incorporating these Terms of Supply, the Master Price List and Confirmation and any special additional terms expressly agreed by us in writing as applying and supplemental to these Terms of Supply and/or the Agreement (including the Master Supply Agreement, if any);
“Applicable Law” means any applicable requirement of law;
"Business Day" means a day (other than a Saturday or Sunday) when banks are open for business in the City of London;
"Confidential Information" means all information received or obtained as a result of entering into or performing or negotiating the Agreement, or otherwise supplied by or on behalf of us which relates to: (a) the negotiations relating to the Agreement; (b) the subject matter and/or provisions of the Agreement (including Product pricing and availability); (c) us or our Affiliates, including know-how, communications and/or data in any form, all plans, technical, business, employee, customer and/or financial information and all proposals, forecasts, sketches, models, samples, databases, methodologies, computer programs or documentation, drawings or specifications, whether oral, written, graphic, electromagnetic or otherwise; or (d) all other information identified as confidential or which might reasonably be considered confidential;
"Confirmation" has the meaning given in clause 2.4 ;
"Control" in relation to a party means the ownership of more than 50% of the issued share capital or the legal power to direct or cause the direction of the general management and policies of that party;
"Dependency Failure" means:
(a) a breach by you of the Agreement; and/or
(b) a failure on your part to perform or to fulfil in a timely manner any dependencies we have on you, or your Personnel in any other way (whether by act or omission) delay delivery or the execution of our work, including delivery;
“Dispense Equipment” has the meaning given in clause 10.1;
“Force Majeure Event” means any circumstance or event beyond our reasonable control including acts of God, governmental or regulatory actions (including legislation, regulations, restrictions or other actions), war or national emergency, acts of terrorism or sabotage, protests, riot, civil commotion, civil war, revolution, rebellion, radiation, toxic contamination, fire, explosion, flood, accident, earthquake, epidemic, accumulation of snow or ice, lack of water or other problems arising from weather or environmental problems, subsidence, natural disaster, emergency conditions, epidemic, lock-outs, defective materials, inability or delays in obtaining raw materials or bought-in goods or components or services, accidents, impossibility of the use of public or private transport or telecommunications networks, fault in machinery or transportation, strikes or other labour disputes or industrial action (whether or not relating to either party's workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate energy, fuel or water, or the threat of any of the above mentioned circumstances;
“Good Industry Practice” means in relation to any activity or requirement relevant to these Terms of Supply, the Agreement or any Product or services supplied pursuant to the Agreement, the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled, competent, efficient and experienced person engaged in the same type of such activity or requirement under the same or similar circumstances and conditions ;
“Insolvency Event” means, in relation to a party:
(a) a notice is issued to convene a meeting for the purpose of a passing a resolution to wind it up, or such a resolution is passed other than a resolution for its solvent reconstruction or reorganisation;
(b) a resolution is passed by its directors to seek a winding up or a petition for a winding up order is presented against it, or such an order is made;
(c) a receiver, administrative receiver, receiver and manager, interim receiver, custodian, sequestrator, administrator or similar officer is appointed in respect of that party or over a substantial part of its assets, or a notice of intention to appoint an administrator is filed in respect of that party, or an encumbrancer enforces its security, or any distress, attachment, sequestration or execution or other similar process affects any of its assets and is not discharged within fourteen (14) days;
(d) a proposal for a voluntary arrangement is made in relation to it under Part I of the Insolvency Act 1986;
(e) any step or event is taken or arises outside the United Kingdom which is similar or analogous to any of the steps or events listed at (a) to (d) above;
(f) it proposes or makes any general assignment, composition or arrangement with or for the benefit of all or some of its creditors (other than for the sole purpose of a solvent amalgamation or solvent reconstruction), or it suspends making payments to all or some of its creditors;
(g) it is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(h) it suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
“Losses and Expenses” means actions, proceedings, losses, awards, damages, liabilities, claims, demands, costs, expenses, and any other diminution in value of any description, including fines, interest, penalties, clean-up costs, legal and other professional fees incurred in connection with investigating or defending any claim, action, demand or proceedings;
“Master Price List” means:
(a) the price list for the Products set out in the schedule to the Master Supply Agreement (if any) or notified by us to you in writing from time to time, which prices shall apply from the date of such Master Supply Agreement or notice unless otherwise specified by us in the Master Supply Agreement or notice (as the case may be); or
(b) to the extent we have not notified you of the price for a particular Product pursuant to paragraph (a) above, the prices applicable to that Product shall be the price set out in the price list specified as applicable to you on a page on our website that is expressly stated to apply to you alone; or
(c) to the extent we have not notified you of the price for a particular Product pursuant to paragraphs (a) and (b) above, the price applicable to that Product shall be our prevailing standard price for that Product as applicable from time to time, details of which can be obtained from us on reasonable request from time to time,
in each case as updated, amended or superseded by us from time to time by written notice or e-mail, or posting on our website.
For the avoidance of doubt, unless otherwise expressly agreed by us in writing we may amend, remove, revoke or replace the Master Price List, or any part of it, at any time in our absolute discretion. Unless otherwise specified, prices in the Master Price List are inclusive of reasonable delivery or carriage costs to mainland destinations in the Serviced Territories;
“Master Supply Agreement” means the framework agreement, if any, between you and us dated prior to the date of the Agreement and relating to the supply of Products by us to you, as amended from time to time in accordance with its terms;
“parties” means you and us and “party” shall be construed accordingly;
“Personnel” means the relevant person's (and their contractors', sub-contractors, agents' and advisers') officers, directors, employees, workers, representatives and agents (including any persons hired as consultants or contract staff) from time to time;
“Proceedings” means any proceeding, suit or action (including arbitration) arising out of or in connection with the Agreement or its subject matter;
“Product” means any goods and/or services, including Dispense Equipment, agreed in the Agreement to be supplied to you by us (including any part or parts of them);
“Regulatory Requirements” means any applicable requirement of law or of any person who has regulatory authority that has the force of law;
“Serviced Territories” means England, Scotland and Wales;
“Taxation” or “Tax” means:
(a) all forms of direct and indirect taxation and statutory, governmental, state, federal, provincial, local government or municipal charges, duties (including stamp duties), imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether of the UK or any other jurisdiction and whether levied by reference to income, profits, gains, net wealth, asset values, turnover, added value or other reference (including social security contributions and any other payroll taxes and including local authority rates) however imposed (whether by way of withholding or deduction for or on account of Tax ort otherwise); and
(b) any penalty, fine, surcharge, interest, charges or costs payable in connection with any Taxation within (a) above or any late or incorrect return in respect of any Taxation within (a) above; and
“VAT” means value added tax as provided for in the Value Added Tax Act 1994 and legislation supplemental thereto.
1.2.1 the headings and sub-headings are for convenience only and shall not affect the construction of the Agreement;
1.2.2 references to clauses are to clauses of these Terms of Supply (unless otherwise specified);
1.2.3 unless the context otherwise requires, words denoting the singular shall include the plural and vice versa and references to any gender shall include all other genders. References to any person (which for the purposes of the Agreement shall include natural persons, bodies corporate, unincorporated associations, partnerships, governments, governmental agencies and departments, statutory bodies or other entities, in each case whether or not having a separate legal personality) shall include the person's successors;
1.2.4 “other” , “include” and “including” do not connote limitation in any way;
1.2.5 any reference to a treaty, statute, statutory provision, directive of the Council of the European Union (whether issued jointly with any other person or under any other name) or other legislation includes:
(a) any order, regulation, instrument or other subordinate legislation made under it; and
(b) except where the contrary is stated or the context otherwise requires, any amendment, extension, consolidation, re-enactment or replacement of it, for the time being in force;
1.2.6 references to any English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, organisation, body, official or any legal concept, state of affairs or thing shall in respect of any jurisdiction other than England be deemed to include that which most nearly approximates in that jurisdiction to the English legal term;
1.2.7 any reference to “writing” or “written” includes faxes and any legible reproduction of words delivered in permanent and tangible form (but does not include e-mails unless expressly otherwise specified or the e-mail is sent to the correct contact identified pursuant to clause 15 );
1.2.8 any reference to a liability incurred by any person includes any liability of that person arising from or in connection with any obligation (including indemnities and all other obligations owed as principal or guarantor) whether liquidated or not, whether present, prospective or contingent or otherwise, and whether or not it would be shown as a “liability” under applicable accounting principles, and whether owed, incurred or imposed by or to or on account of or for the account of that person alone, severally or jointly or jointly and severally with any other person;
1.2.9 references to times of the day are (unless otherwise expressly provided) to London time and references to a day are to a period of twenty four (24) hours running from midnight on the previous day.
1.3 To be valid, all certificates, communications and other documents made in connection with the Agreement shall be in English. If all or any part of the Agreement or any such certificate, communication or other document is for any reason translated into any language other than English the English text shall prevail. Each of the Parties understands English and is content for all communications relating to the Agreement (including in connection with Proceedings) to be served on it in English.
2.1 By ordering any of our Products through our website, you agree to be bound by these Terms of Supply. These Terms of Supply supersede all previous trading terms and conditions issued by us and shall apply to all agreements between us relating to the supply of Products ordered through our website.
2.2 The Agreement shall be on and incorporate these Terms of Supply and the terms specified in the other documents referred to in the definition of “Agreement” to the exclusion of all other terms and conditions (including any terms or conditions which you purport to apply under any purchase order, confirmation of order, specification or other document). No terms or conditions endorsed on, delivered with or contained in your purchase order, confirmation of order, specification or other document shall form part of the Agreement.
2.3 You will indicate by completing the appropriate order form on our website the Products that you wish to order. Each order by you or acceptance of a quotation for Products from us by you shall be deemed to be an offer by you to buy Products subject to these Terms of Supply. After placing an order, you will receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted.
2.4 All orders are subject to acceptance by us. We may chose to decline to accept or cancel any order even if we have received payment. If we decline to accept or cancel any order we shall refund the payment but shall have no further liabilities or obligations to you. No order placed by you shall be deemed to be accepted by us until a written or e-mail confirmation that the Product(s) have been dispatched or a confirmation of your order (which must state an “Order Confirmation” number as the subject line) (each a “ Confirmation ”) has been issued by us or we deliver the Products to you. The Agreement shall only relate to those Products whose dispatch we have confirmed in such Confirmation. We will not be obliged to supply any other Products that may have been part of your order until confirmed in a separate Confirmation. The price payable for the Products will be that set out in the Master Price List applicable to you.
2.5 You shall ensure that the terms of your order and any applicable specification are complete, accurate and not misleading.
3. Description
3.1 The quantity and description of the Products shall be as set out in the Confirmation.
3.2 Except for the Master Price List, all samples, illustrations, descriptions, specifications, advertising, indications of price and information about any Product (together “Product Information” ) issued by us (or on our behalf) or contained in our catalogues or brochures or our website or otherwise communicated to you are issued or published for the sole purpose of giving an approximate idea of the Products described in them and for guidance only to merely present a general idea of the Products. Such Product Information shall not form part of the Agreement and this is not a sale by sample.
4. Delivery
4.1 Unless otherwise agreed in writing by us, delivery of the Products to you shall be deemed to take place on the earlier of the date and time:
4.1.1 when the Products leave our premises;
4.1.2 if the Products are to be transmitted to you direct from the premises of our supplier, when the Products leave the premises of our supplier;
4.1.3 when the Products are made available for collection, delivery or dispatch;
4.1.4 when the Products are sent or delivered to or collected by any carrier, including any carrier selected by us; or
4.1.5if the Products are to be collected by you or your Personnel, when you take possession of the Products.
4.2 You shall take delivery of the Products when the Products are ready for collection, dispatch or delivery, and shall make appropriate members of your Personnel available to receive, sign an acknowledgement of delivery ( “Acknowledgement Slip” ) for, check and /or collect the Products as appropriate. No Acknowledgement Slip will be required to be signed if you have notified us that the Products may be left unattended at a specific location.
4.3 You will indemnify and keep indemnified and hold harmless us, our Affiliates and our or their Personnel, including our carriers (or at our election indemnify us on our own behalf and/or on behalf of any the foregoing) against all Losses and Expenses (including in relation to the Products and including in negligence) caused by you, your Affiliates and your and their Personnel, in connection with any collection or off-loading by them of any Product.
4.4 Any date specified by us for delivery of the Products (or contained in any order placed by you) is intended to be an estimate and time for delivery shall not be of the essence or made of the essence by notice. Your estimated order delivery date will be that set out in the relevant Confirmation or, if no estimate is specified, shall be within a reasonable time. All dates are subject to availability.
4.5 If for any reason you fail to comply with clause 4.6 , or to procure the collection, or take or accept delivery of any of the Products at the time they are ready for collection, delivery or dispatch (in accordance with clause 4.1 and/or 4.2 ), or we are unable to deliver the Products on time because you have not provided appropriate instructions, documents, licences or authorisations or because you, your Affiliates or your or their Personnel otherwise delay delivery:
4.5.1 risk in the Products shall pass to you (including for loss or damage caused by our negligence at that time);
4.5.2the Products shall be deemed to have been delivered at that time;
4.5.3 we may store the Products until actual delivery, whereupon you shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and
4.5.4 we may charge you a fee of £100 per instance to compensate us for any wasted delivery costs and management time.
4.6 You shall provide, at your expense, at the place where physical delivery of the Products is to take place, adequate and appropriate equipment and manual labour for loading and unloading the Products.
4.7 If we deliver to you a quantity of Products of:
4.7.1 up to 5% more; or
4.7.2 up to 100% less,
than the quantity accepted by us and/or set out in the e-mail Confirmation (if any), you shall not be entitled to object to or reject the Products or any of them by reason of the surplus or shortfall and shall pay for such Products at the pro rata Agreement rate. Short delivery shall be accepted by you as part performance of the Agreement.
4.8 We may deliver the Products by separate instalments. Each separate instalment may (at our election) be invoiced separately.
4.9 Each instalment shall be the subject of a separate Agreement and no cancellation or termination of any one Agreement relating to an instalment shall entitle you to repudiate or cancel any other Agreement or instalment.
5. Non-delivery
5.1 The quantity of any consignment of Products as recorded by us on despatch from our place of business shall be conclusive evidence of the quantity received by you on delivery unless you can provide us with a reasonable opportunity to inspect the Products and provide conclusive evidence proving the contrary.
5.2 We shall not be liable for any non-delivery of Products (even if caused by our negligence) unless you give written notice to us of the non-delivery within 48 hours of the date and time when the Products would in the ordinary course of events have been received.
5.3 Our liability for non-delivery of the Products (if any) shall be limited to replacing the Products within a reasonable time or (at our election) issuing a credit note at the pro rata Agreement rate against any invoice raised for such Products or cancellation of all or the relevant part of the Agreement.
5.4 You shall accept a signed Acknowledgement Slip, or a copy of it, as proof that the Products were delivered at the date and time shown and that you have undertaken an inspection of the Products and that there is no external evidence of tampering and/or damage to the Products in transit and at the time of delivery.
6. Risk/title
6.1 The Products are at your risk from the earlier of delivery or deemed delivery (as described in clauses 4.1 and 4.5 ). All responsibility for the safe custody protection and preservation of the Products after delivery occurs or is deemed to have taken place shall rest with you and you are required to take all proper steps with regard thereto and shall remain liable to pay for all Products so delivered (or deemed to be delivered).
6.2 Ownership of the Products shall not pass to you until we have received in full (in cash or cleared funds) all sums due in respect of:
6.2.1 the Products; and
6.2.2 all other sums which are or which become due to us from you on any account; and
6.2.3 all other sums which are or which become due to us or any of our Affiliates from you or any of your Affiliates on any account.
6.3 Until ownership of the Products has passed to you, you shall:
6.3.1 only use the Products in the ordinary course of your business and hold all unused Products (and parts thereof) on a fiduciary basis as our bailee;
6.3.2 store and protect the Products (at no cost to us) separately from all your and your Affiliates' other goods or any third party goods in such a way that they remain readily identifiable as our property;
6.3.3 notify us, on demand, of all and any locations where the Products will be or are delivered to or stored;
6.3.4 not charge or encumber the Products;
6.3.5 not destroy, deface or obscure any identifying mark, serial number or packaging on or relating to the Products;
6.3.6 maintain the Products in satisfactory condition and keep them insured on our behalf for their full price against all risks to our reasonable satisfaction (on request you shall produce the policy of insurance to us); and
6.3.7 at any time allow us to recover (or at our election return to us) and re-sell such Products.
6.4 Save as stated elsewhere in these Terms of Supply and provided we do not revoke this right prior to sale by written notice to you, you may resell or otherwise use or on use the Products before ownership has passed to you solely on the following terms:
6.4.1 any use or on use of the Products must be in the ordinary course of your business;
6.4.2 any sale shall be effected in the ordinary course of your business at full market value; and
6.4.3 any sale shall be a sale of our property on your own behalf and you shall deal as principal when making such a sale.
6.5 Until title in the Products passes to you, if you are subject to an Insolvency Event, or we notify you that we (acting reasonably and in good faith) have doubts about your solvency or creditworthiness or we serve or have the right to serve notice of termination on you pursuant to clauses 13.1.1 , 13.1.2 or 13.1.6 , without prejudice to any other rights we may have:
6.5.1 your right to possession of the Products shall terminate immediately;
6.5.2 all sums payable to us by you in respect of the Products or otherwise shall become due and payable forthwith, without the requirement for any notice to be given;
6.5.3 we shall be released from any obligation to deliver such Products as remain undelivered, save on terms acceptable to us;
6.5.4 if the Products or any of them shall have been delivered, the power of sale and use and on use referred to in clause 6.4 shall be deemed revoked forthwith and shall terminate immediately and the Products shall be delivered up to us (at your cost and expense); and
6.5.5 you will indemnify and keep indemnified us, our Affiliates and our and their Personnel (or at our election indemnify us on our own behalf and/or on behalf of any the foregoing), against all Losses and Expenses we or any of the foregoing persons suffer or incur in respect of any repossession of Products.
6.6 You grant us and our Personnel an irrevocable licence at any time to enter any premises where the Products are or may be stored or used in order to inspect them, or, where we exercise any right to recover the Products or your right to possession of them has terminated, to recover them. You shall provide us and our Personnel with all access, facilities, resources and assistance as we may reasonably require for the purpose of exercising our rights under this clause 6.
6.7 Following delivery (or deemed delivery), we shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from us.
6.8 Where we are unable to determine whether any Products are the goods in respect of which your right to possession has terminated, you shall be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.
7. Price
7.1 Unless otherwise agreed by you and us in writing, the price for each Product shall be the price set out in the Master Price List on the date of your order, except that we may vary the price of a Product to take account of any variation in the cost of materials or transportation or wages and overheads between the date of your order and the date of delivery or dispatch (whichever is later) of the Products or to amend any obvious error. If an order is amended, the price shall be as set out in the Master Price List as at the date of the final amendment.
7.2 The price for the Products shall be exclusive of any VAT and any import duties and any other Taxes (which shall be added to the price quoted and be fully payable by you), all of which amounts you shall pay in addition when due to pay for the Products. Except where expressly stated otherwise in the Master Price List, or as otherwise agreed by us in writing, all costs or charges in relation to packaging, loading, unloading, carriage and insurance up to delivery (where delivery is made by us or our Personnel) are included in the amounts set out in our Master Price List.
7.3 We may amend the Master Price List (and any part of it) from time to time.
7.4 If the aggregate value (excluding VAT and other Taxes) of an order in respect of which a Confirmation has been given is less than £75 an additional administration charge of £10 (excluding VAT) will be payable by you.
8. Invoicing and Payment
8.1 We may invoice you at any time on or after delivery or deemed delivery of the Products.
8.2 Subject to clause 8.5, payment of the price for the Products is due in pounds sterling within 30 days from the date of our invoice.
8.3 Time for payment shall be of the essence.
8.4 No payment shall be deemed to have been received until we have received it in cleared funds.
8.5 All payments payable to us under the Agreement shall become due immediately on its termination despite any other provision.
8.6 If you pay all sums due to us under the Agreement in cleared funds within 10 days of the date of the relevant invoice, you shall be entitled to a discount of 2.5% of the value of the aggregate amount paid under that Agreement against the value of your next order. The discount shall not apply (and the full amount of any discount applied shall become payable) if at any time you return any of the Products supplied under the Agreement, or seek a refund under or make any claim for Losses and Expenses in connection with the Agreement. For the avoidance of doubt each such discount shall only apply once and this discount may not be used in conjunction with any other offer or discount that we may offer from time to time.
8.7 You shall make all payments due under the Agreement in full without any deduction or withholding whether by way of set-off, counterclaim, claim, discount, abatement or otherwise unless you have a valid court order requiring an amount equal to such deduction to be paid by us to you. Without prejudice to our other rights and remedies, we may at any time or times, retain any amounts due to you under the Agreement, or otherwise due to you from us, and/or the amount of any credit given to you by us, and set them off against any amounts that may be owed by you to us from time to time.
8.8 If you fail to pay us any sum due pursuant to the Agreement, we may (at our absolute discretion) terminate the Agreement or any part of it and/or withhold delivery of the Products until all sums due from you to us (under the Agreement and all other contracts and arrangements) have been paid in full in cleared funds and/or either (in our absolute discretion):
8.8.1 claim interest on such sum due from and including the due date for payment at the rate which is the aggregate of 4% per annum above the Bank of England base rate from time to time, accruing on a daily basis (based on a 365 day year) until payment is made, whether before or after any judgment; or
8.8.2 claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
8.9 The interest payable under clause 8.8.1 (if any) shall be payable on demand and compounded monthly in arrears.
8.10 We reserve the right at any time and in our absolute discretion to demand security for payments before continuing with delivery of any Products (even if we have the Agreement to provide credit to you).
8.11 All Losses and Expenses reasonably incurred by us in seeking to collect overdue payments from you or otherwise to enforce our rights under the Agreement will be recoverable from you on an indemnity basis.
8.12 Payment for all Products must be made in cleared funds by electronic funds transfer, cheque or credit or debit card to our bank account. We will notify you in writing and/or post on our website the details of cards accepted by us from time to time. We may update those details from time to time at our discretion. You will be charged a £25 administration fee for:
8.12.1 each unauthorised credit or debit card transaction;
8.12.2 any credit or debit card transaction that is subsequently charged back by the card issuer; and
8.12.3 any payment purportedly made by you by cheque which is not met on first presentation of the cheque to your bank
9.1 All warranties, conditions and other terms implied by Applicable Law are, to the fullest extent permitted by Applicable Law, excluded from the Agreement, including in relation to any Product (including Dispense Equipment) and/or the performance of any service.
9.2 Without prejudice to clause 9.1 , if and to the extent any term is implied into the Agreement pursuant to Applicable Law (other than any term(s) implied by section 12 of the Sales of Goods Act 1979), to the fullest extent permitted by Applicable Law that term shall be implied as a warranty and not as a condition.
9.3 To the fullest extent permitted by Applicable Law, we shall not be liable for any breach of any implied warranty or condition implied into the Agreement pursuant to Applicable Law (other than those terms implied by section 12 of the Sales of Goods Act 1979) unless:
9.3.1 you give written notice of the defect to us immediately upon becoming aware of it and, if the defect arises as a result of damage in transit, also to the carrier, within 48 hours of delivery; and
9.3.2 we (and our Personnel) are given a reasonable opportunity after receiving the notice of examining such Products and you (if asked to do so by us) return such Products to our place of business, at our cost, for the examination to take place there.
9.4 To the extent permitted by Applicable Law, we shall not be liable for any breach of any implied warranty or condition implied into the Agreement pursuant to Applicable Law in connection with any Product (other than those terms implied by section 12 of the Sales of Goods Act 1979) if and to the extent that:
9.4.1 you make any further use of such Products after giving such notice; or
9.4.2 the defect arose or was exacerbated because you failed to follow our oral or written instructions or other guidance made available by us as to the storage, installation, commissioning, use, maintenance or disposal of the Products and/or otherwise failed to comply with Regulatory Requirements or Good Industry Practice in relation to them; or
9.4.3 you alter, repair, repackage or change in any other way such Products without our prior written consent.
9.5 Without prejudice to clause 9.1 and subject to clauses 9.2 to 9.4 (inclusive), if and to the extent that any Product does not conform with any warranty relating to it implied by Applicable Law, we shall at our discretion:
9.5.1 repair or replace such Products (or the defective part(s)) at our expense; or
9.5.2 terminate the Agreement in whole or in part (and refund any payments made in respect of the relevant Products (or the defective part(s)) that are the subject of the termination at the pro rata Agreement Rate); or
9.5.3 refund the price of such Products (or the defective part(s)) at the pro rata Agreement rate,
provided that, if we so request, you shall, at our expense, return the Product or the relevant part of the Product which is defective to us. If we comply with this clause 9.5 we shall have no further liability for a breach of any implied term in respect of the Products. Any Products replaced shall, if we so elect, belong to us.
9.6 Following delivery, Products must be regularly tested and maintained by you to ensure they comply with Regulatory Requirements, are and remain safe and suitable for the purpose(s) for which you propose or intend to use them. You are responsible for the storage, control, transfer and use of the Products and (except in relation to Dispense Equipment, unless otherwise agreed by us,) their disposal (and the disposals of their packaging) in accordance with Good Industry Practice and Regulatory Requirements.
10.1 If we provide equipment to you for use for dispensing or dosing purposes that has not been separately identified as sold to you ( “Dispense Equipment” ):
10.1.1 all Dispense Equipment remains our property at all times and does not form part of the other Products (that are not Dispense Equipment) or any of them;
10.1.2 Dispense Equipment shall only be installed and/or used at your premises and shall at all times following our making it available to you until its return to us remain in your safe custody and under your control;
10.1.3 all Dispense Equipment is provided “as is” and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded;
10.1.4 you accept responsibility for all loss and/or damage to Dispense Equipment, except that arising from ordinary wear and tear. If any such loss or damage arises we may charge you the full cost of replacement of the relevant Dispense Equipment at the current rate prevailing together with any call-out fee and the cost of any consumables used or required to remove and fit new Dispense Equipment;
10.1.5 you will regularly inspect and maintain in good working order all Dispense Equipment installed or used at your premises and shall safely secure and prevent any person using any Dispense Equipment that is or becomes defective;
10.1.6 you agree that only Products supplied by us can be dispensed from Dispense Equipment and you shall not be entitled to use Dispense Equipment with any product(s) provided by another supplier;
10.1.7 if you decide to change supplier and/or no longer order a particular Product you will give us at least 10 Business Days' notice and permit us and our Personnel reasonable access during normal working hours to remove any Dispense Equipment used to dispense or dose the affected Product; and
10.1.8 if any Dispense Equipment fails or otherwise becomes defective we will provide our own engineers to investigate and report on the cause of failure at such time as we may elect (in our sole discretion). If the cause of failure is found to be due to damage, neglect or misuse or any other similar reason, we reserve the right to charge you for the replacement of the relevant Dispense Equipment. You will accept as final the results of our investigation.
10.2 If you or we terminate the Agreement for the supply of Products used in the Dispense Equipment or the Master Supply Agreement (if any) and/or you make no further orders of the Product(s) dispensed or dosed at the applicable premises by such equipment within six months (or such other period as Zenith may agree in writing) of the later of the date of the first order by you of such Products and the date of installation of that Dispense Equipment, you will be liable for the full cost of the Dispense Equipment to us (including costs of installation and removal).
10.3 If you or we terminate the Agreement (in whole or in part) for the supply of Products used in the Dispense Equipment or the Master Supply Agreement (if any) (in whole or in part) or you are subject to an Insolvency Event your right to possession and use of the Dispense Equipment will cease immediately.
10.4 You grant us and our Personnel an irrevocable licence at any time to enter any premises where the Dispense Equipment are or may be stored and shall provide us and our Personnel with all access, facilities, resources and assistance as we may reasonably require for the purpose of exercising our rights under this clause 10. We will not be liable to you (including in tort, including negligence) for any Products or other products or goods owned by you in the Dispense Equipment which are destroyed, lost or removed when we exercise our rights under this clause 10.
10.5 Unless otherwise agreed by us in writing, all installation, repair, decommissioning and removal of Dispense Equipment shall be undertaken by us (or our Personnel) and, subject to clause 11, we (or our Personnel) shall make good any material property damage caused by us or our Personnel in undertaking such activities
11. Limitations of liability
11.1 Subject to clauses 4, 5 and 9, the following provisions of this clause 11 set out our entire financial liability (including any liability for the acts or omissions of our Personnel) in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise to you in respect of:
11.1.1 any breach of the Agreement (including these Terms of Supply);
11.1.2 any use made or resale by you or on your behalf of all or any of the Products (including any Dispense Equipment), or of any product incorporating all or any of the Products (including any Dispense Equipment), including any loading, unloading, use, operation, installation, decommissioning or removal of all or any of the Products (including any Dispense Equipment); and
11.1.3 any representation, statement or tortious act or omission, including negligence, arising under or in connection with the Agreement (including in relation to any Product or Dispense Equipment)
11.2 Nothing in the Agreement (including these Terms of Supply) excludes or limits our liability
11.2.1 for death or personal injury caused by our negligence; or
11.2.2 under the Consumer Protection Act 1987 to the extent it cannot be excluded or limited by law; or
11.2.3 for any matter which it would be illegal for us to exclude or attempt to exclude our liability; or
11.2.4 for fraud or fraudulent misrepresentation
11.3 Subject to clause 11.2, we shall not be liable to you for:
11.3.1 any Losses and Expenses arising directly or indirectly from any delay in the delivery of the Products (even if caused by our negligence), nor shall any delay entitle you to terminate or rescind the Agreement unless such delay exceeds 30 days;
11.3.2 any Losses and Expenses arising from any defect caused by or otherwise arising in connection with:
(a) any wilful misconduct, negligence or breach by you or your Personnel of the Agreement; or
(b) any misuse (including use for purpose other than that for which they were designed), neglect or general wear and tear of all or any of the Products (including Dispense Equipment), except to the extent we or our Personnel are responsible for such misuse, neglect or wear and tear;
11.3.3 any loss of income or revenue;
11.3.4 any loss of profits;
11.3.5 any loss of anticipated savings;
11.3.6 any loss of contract or business opportunity;
11.3.7 any damage to goodwill;
11.3.8 any wasted management or office time, however arising; or
11.3.9 any other indirect or consequential loss,
in each case whether direct or indirect
11.4 Subject to clauses 9, 11.2 and 11.3, our total aggregate liability:
11.4.1 respect of any damage caused by us or our Personnel to premises and tangible property shall in no event exceed in aggregate £10,000; and
11.4.2 in respect of all other liability and Losses and Expenses not covered by clause 11.4.1, whether arising from tort (including negligence and/or breach of statutory duty), breach of contract or otherwise under or in connection with the Agreement (including these Terms of Supply), and/or its performance shall in no event exceed the aggregate sum payable by you to us under the Agreement
12. Force Majeure and Dependencies
12.1 We reserve the right to defer the date of delivery or to cancel the Agreement or reduce the volume of the Products ordered by you or suspend or delay the performance of any other obligations to you (without liability to you) if we are prevented from or delayed in the carrying on of our business, or any relevant part thereof, due to a Force Majeure Event or a Dependency Failure.
12.2 In the event of a Dependency Failure you will pay us in full for the cost of any rework or additional resource or Losses and Expenses (including wasted management time and delivery costs, if any) incurred by us.
12.3 If a Force Majeure Event continues for a continuous period in excess of 30 days, either party shall be entitled to give 10 days notice in writing to the other party to terminate the Agreement.
12.4 The provisions of this clause 12 shall supersede any special terms or other agreements, even if we may have accepted liability for late or incomplete delivery.
13. Termination
13.1 We may terminate the Agreement (in whole or in part) with immediate effect (or with effect from any later time specified by us in the termination notice) by giving written notice to you (without affecting our accrued rights and without entitling you to receive any compensation):
13.1.1 if you default in the payment on its due date of any sum payable under the Agreement and do not pay that sum within ten (10) Business Days after receipt of notice from us demanding such payment; or
13.1.2 if you commit any continuing, persistent or material breach of the Agreement and fail to remedy such breach (if remediable) within ten (10) Business Days of receipt of a notice from us requiring you to do so; or
13.1.3 if an Insolvency Event arises in relation to you; or
13.1.4 we so elect by written notice or e-mail (at our sole discretion); or
13.1.5 as otherwise provided in the Agreement; or
13.1.6 if you undergo a change of Control or sell or otherwise transfer all or substantially all of your assets or undertakings to a third party
13.2 Following termination of the Agreement (whether in whole or in part):
13.2.1 you will remain fully liable for any and all sums due up to and including termination; or which may otherwise fall due;
13.2.2 you agree to hold us harmless and indemnify us from any claims that may arise from termination;
13.2.3 we will (at our election) be released from any obligations under the Agreement;
13.2.4 you will, on request, surrender up to us all unpaid Products (at our cost), which shall remain our legal and rightful property, and will comply with clauses 10.3 and 10.4 ; and
13.2.5 such termination shall not release either party from any other liabilities or obligations incurred by it under the Agreement (including these Terms of Supply) or any other agreement.
13.3 This clause 13 and the following provisions of the Terms of Supply shall survive the termination or expiry of the Agreement (in whole or in part) and shall apply and remain in full force and effect without limitation in time: clauses 1, 2, 6, 7, 8, 9, 10, 11, 14, 15, 16, 17 and 20.
14. Use of Information
14.1 You undertake to keep confidential (except as expressly provided in the Agreement) at all times after the date of the Agreement, and not directly or indirectly reveal, report, publish, disclose or transfer or use for you or your own or any other purposes, any Confidential Information.
14.2 The prohibition in clause 14.1 does not apply to the extent:
14.2.1 disclosure is necessary to comply with Regulatory Requirements following consultation with us (unless such consultation is prohibited by Regulatory Requirements); or
14.2.2 the information was in the public domain before it was furnished to you or, after it was furnished to you, entered the public domain otherwise than as a result of: (a) a breach by you of this clause 14; or (b) a breach of a confidentiality obligation by the discloser, where the breach was known to you; or
14.2.3 disclosure is made to your Personnel for reasons necessary for the proper performance of their duties or services in the ordinary course of your business and you ensure such persons keep such information confidential and do not disclose it to any third party.
14.3 If you learn of any unauthorised use or disclosure, or threatened unauthorised use or disclosure, of any Confidential Information, you shall as soon as reasonably practicable notify us of the particulars of such use or disclosure.
14.4 Subject to the other obligations imposed in this clause 14, you must not use information, materials or intellectual property rights provided or made available on our website other than in compliance with the Website Terms of Use.
15. Communications
15.1 Applicable Law requires that some of the information or communications we send to you should be in writing. When using our website to order Products from us, you accept that communication with us may be mainly electronic. We may contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
15.2 All notices given by you to us must be given to Customer Care at customercare@zhgplc.com. We may give notice to you at either the e-mail or postal address or fax number you provide to us when placing an order, or in any of the ways specified in clause 15.1 above. Any communications sent by fax or e-mail shall be deemed to have received within fifteen minutes of transmission. In the event of any document needing to be sent by post then it shall be sent by first class letter post to our registered office or your last known trading address or to another address where it may reasonably be expected to be bought to the attention of the relevant party. Any document sent by first class letter post shall be deemed to have been received twenty-four hours (excluding Saturdays, Sundays and bank and public holidays) after posting.
16. General
16.1 Specific waivers to be in writing . Any waiver of any right, power or remedy under the Agreement by us must be in writing and may be given subject to any conditions thought fit by us. No waiver will take effect if you have failed to disclose to us every material fact or circumstance which (so far as you are aware) has a bearing on its subject matter. Unless otherwise expressly stated, any waiver granted by us shall be effective only in the instance and only for the purpose for which it is given. No right, power or remedy provided by law or under the Agreement shall be waived, impaired or precluded by:
16.1.1 any delay or omission to exercise it; or
16.1.2 any single or partial exercise of it on an earlier occasion; or
16.1.3 any delay or omission to exercise, or single or partial exercise, of any other such right, power or remedy.
16.2 The rule of law known as the doctrine of election shall not apply in relation to our exercise of the right to terminate the Agreement. We shall not be taken to have abandoned any right to terminate under a clause unless and until we have given you express written notice to that effect.
16.3 Variations to be in writing. No variation to the Agreement shall be of any effect unless it is agreed in writing and signed by or on behalf of us and signed by one of our current directors. The provisions of this clause 16.3 are without prejudice to our rights in clause 18 below.
16.4 Invalidity. Each of the provisions of the Agreement is severable. If any such provision is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction that shall not affect or impair the legality, validity or enforceability in that jurisdiction of the other provisions of the Agreement, or of that or any provision of the Agreement in any other jurisdiction.
16.5 No partnership. Nothing in the Agreement and no action taken by the parties pursuant to the Agreement shall constitute or be deemed to constitute a partnership, association, joint venture or other co-operative entity between the parties and none of the parties shall have any authority to bind the others in any way except as provided in the Agreement.
16.6 Third Party Rights. Except as provided in this clause, nothing in the Agreement is intended to confer on any person any right to enforce any term of the Agreement which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999. Each of our Affiliates and our and their Personnel shall be entitled to enforce the provisions of the Agreement expressed to be for their benefit. The right of the parties to terminate, rescind or agree any amendment, variation, waiver or settlement of the Agreement is not subject to the consent of any person that is not a party to the Agreement.
17. Entire Agreement
17.1 Entire Agreement . The Agreement (together with the Website Terms of Use) and the Master Supply Agreement (if any) constitute the whole and only agreement and understanding between the parties in relation to its subject matter. Subject to clause 17.5 all previous drafts, agreements, understandings, undertakings, representations, warranties, promises and arrangements of any nature whatsoever between the parties or any of them with any bearing on the subject matter of the Agreement are superseded and extinguished to the extent that they have such a bearing, except insofar as any such thing is in terms repeated or otherwise reflected in the Agreement or the Master Supply Agreement (if any).
17.2 We and you each acknowledge that, in entering into the Agreement, neither you or we have relied on any prior drafts, agreements, understanding, undertakings, representations, warranties, promises or arrangements given (or be implied from anything said or written in negotiations between you or us prior to the Agreement) except as expressly stated in the Agreement (together with the Website Terms of Use). Any rights or liabilities arising by reason of anything it is the purpose of this clause to exclude (whether accrued or not at the date of the Agreement), as a matter of common law, statute, custom or otherwise (including actions brought in negligence) are cancelled and excluded.
17.3 Neither you or we shall have any remedy in respect of any untrue statement (even if made negligently) made by the other, whether orally or in writing, prior to the date of the Agreement (unless such untrue statement was made fraudulently) and your only remedy shall be for breach of contract as provided in the Agreement.
17.4 The rights, powers and remedies provided to us in the Agreement or expressly referred to in it are independent and cumulative and do not exclude any rights, powers or remedies (express or implied) which are available as a matter of common law, statute, custom or otherwise.
17.5 Nothing in the Agreement shall be read or construed as excluding any liability or remedy in respect of fraud
18. Our rights to vary and amend these Terms of Supply
18.1 We have the right to revise and amend these Terms of Supply from time to time.
18.2 You will be subject to the policies, Website Terms of Use, and/or Terms of Supply in force at the time that you order products from us, unless any change to those policies, Website Terms of Use or these Terms of Supply (as the case may be) is required to be made by Regulatory Requirements (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies, Website Terms of Use or these Terms of Supply before we send you the Confirmation (in which case we have the right to assume that you have accepted the change to the polices, Website Terms of Use and/or Terms of Supply (as the case may be), unless you notify us to the contrary within five Business Days of receipt by you of the Products). If you so notify us, you will (at your expense) promptly arrange for the safe return of any unused delivered Products to us. If you, sell or otherwise dispose of, use or on use any Products you shall be deemed to have accepted the policies, Website Terms of Use and these Terms of Supply as so in force.
19. Assignment and Sub-contracting
19.1 You may not:
19.1.1 assign, transfer, charge or deal in any way with the benefit of, or any of your rights under or interest in, the Agreement; or
19.1.2 sub-contract any or all of your obligations under the Agreement,
or do any such thing in relation to any document or arrangement expressed to be supplemental to the Agreement, or which the Agreement expressly preserves or requires to be executed, except in accordance with a prior express written waiver given by us.
19.2 We may assign the benefit of, and any of our rights under, the Agreement together with any cause of action arising in connection with any of them to our successor in title or to any other person.
19.3 If we consent to you sub-contracting any of your obligations under the Agreement, you shall procure and ensure that your permitted sub-contractors enter into a confidentiality agreement in substantially the terms of the confidentiality provisions of the Agreement for the benefit of and enforceable by us.
19.4 Each Agreement shall be binding upon and take effect for the benefit of the personal representatives and permitted assigns and successors in title of each of the parties and references to the parties shall be construed accordingly.
19.5 Notwithstanding the provisions of this clause 19, if you are permitted to assign any right under the Agreement you may disclose to a bona fide permitted assignee information in your possession relating to the provisions of the Agreement, the subject matter of the Agreement and Zenith to the extent it is necessary for the purposes of the proposed assignment provided that such disclosure shall be made only after notice has been given to us of the identity of the proposed assignee and the proposed assignee has provided a binding undertaking (in terms satisfactory to us) to comply with those provisions.
20. Governing law and jurisdiction
20.1 English law. The Agreement (including these Terms of Supply), and any non-contractual rights or obligations arising out of or in connection with it or its subject matter, shall be governed by and construed in accordance with English law.
20.2 Submission to jurisdiction . The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to hear and determine or otherwise settle all and any Proceedings.