1.1 These general terms and conditions (General Terms) apply to all products (Products) and services, including delivery, training and installation services (Services) (together Deliverables) which we, Blk Box Fitness Limited (registered company number NI611745, registered office 2 Cloughfern Avenue, Newtownabbey, Northern Ireland, BT37 0UH) (we, us or our) provide to you as our client (you or your), as may be more specifically set out in the relevant Order Terms (defined below), where your order is placed through our website only. If we enter into a contract with you via our website, it will be governed by our separate ecommerce terms available here
1.2 Please note that, if you are purchasing Products or Services as a Consumer, nothing in the Agreement will affect your statutory rights.
1.3 This version 2 of these General Terms was last updated on 14 February 2023. Historic versions can be obtained by contacting us.
2. DEFINITIONS & INTERPRETATION
2.1 The following terms shall have the following meanings in these General Terms, and the following rules shall apply:
Agreement has the meaning set out in clause 3.1;
Business Day means any day other than a Saturday, Sunday or public holiday in Northern Ireland when banks in Belfast are open for business;
Charges means the total charges set out within the Order Terms or otherwise provided for under the Agreement;
Confidential Information means in relation to either party, any or all information of a confidential nature (whether in oral, written or electronic form) including trade secrets and information of commercial value known and belonging to that party and concerning its business, suppliers, customers, products or services (including the Deliverables) and any other information which the recipient knows or is notified or has reason to believe is confidential to the disclosing party;
Consumer means an individual acting for purposes that are wholly or mainly outside that individual's trade, business, craft or profession.
IP Rights means any patents, trademarks, service marks, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, database rights, know-how, trade or business names and other similar rights or obligations or intellectual property rights whether registrable or not, in any country;
Order Confirmation has the meaning set out in clause 3.3;
Our Materials has the meaning set out in clause 9.7;
manufacturer means the original equipment manufacturer of any Products, which may be us or a third party;
Specification means any specification for the Deliverables, including any relevant plans or drawings, that is agreed in writing between you and us, whether in the Order Terms or otherwise;
Unsuitable Conditions means conditions that we deem create, in our reasonable discretion, an unacceptable health and safety or operational risk to our agents, employees or sub-contractors, the client or the public;
Warranty Period has the meaning given in clause 6.1 and
Your Products has the meaning set out at clause 10.12.
2.2 Words in the singular include the plural and those in the plural include the singular.
2.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.4 A reference to a party includes its personal representatives, successors or permitted assigns.
2.5 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2.6 Any obligation on a party not to do something includes an obligation not to allow that thing to be done, and an obligation to do something includes an obligation to use best endeavours to procure that thing shall be done.
2.7 References to clauses are to clauses of these General Terms.
3. ORDER AND FORMATION OF CONTRACT
3.1 Our agreement with you is made up of:
(i) these General Terms;
(ii) the order form or proposal issued by us in connection with the Deliverables (Order Terms); and
(iii) any other document which is stated to be legally binding which is signed and agreed by both parties. Together the above documents will be the Agreement. These documents are the only terms that apply to the contract between you and us. Any other terms (including those that you may try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing) are excluded from the Agreement.
3.2 Any Order Terms issued by us shall not constitute an offer and are only valid for a period of 30 calendar days from their date of issue. Any quotation is made on the understanding that it may be accepted in full and not in part. Errors and omissions are excepted.
3.3 All orders must be confirmed in writing. We accept no responsibility for inaccuracies of orders given verbally, including by telephone. Any order placed by you shall only be deemed to be accepted upon your acceptance of our Order Terms (either by signature and return, email acceptance, issuance of PO, or payment of any deposit required) at which point the Agreement shall come into existence (Commencement Date). Orders will normally be processed by us upon the Commencement Date, but we reserve the right not to process your order until the first deposit payment has been made. Sometimes we may cancel orders (or part thereof), for example, because a Product is unexpectedly out of stock, or we have made substantive or significant changes to the Product(s) or because there is an error or omission in any of our sales literature, estimate, quotation, price list, acceptance of offer, invoice or other document or information issued by us, including scenarios where the Product was mispriced by us. While we will use our best efforts to correct any such errors, we are not responsible for orders placed for Products or orders which are otherwise affected as a result of these errors. When this happens, we let you know as soon as possible and contact you to confirm whether you are happy to change your order. If you are not, we may refund any sums you have paid in respect of any element of your order we can no longer fulfil.
3.4 After the Order Terms are agreed, we may also change the relevant Products to make minor technical adjustments and improvements and/or to reflect changes in relevant laws and regulatory requirements. If we feel these changes will significantly affect your use of the Products, we will notify you and you can contact us to end the Contract before changes take place and receive a refund.
3.5 If you wish to amend an order or specific item within your order, after receipt of confirmation from us in accordance with clause 3.3, you must notify us in writing within the indicated time periods, as follows:
• Product Orders: 24 hours
• Manufactured Items: 10 business days
• Customised Product: 5 business days
• Installation Services: 10 business days
We will let you know if the change to your order or specific item within your order, is possible. If this is possible then then we will update you as to any changes to the price of the Product, the delivery times or anything else required to provide your request to change your order. We reserve the right amend the Charges to reflect any amendment made to the order, including an amendment fee to cover all costs, expenses and/or other losses arising as a result of any amendment. If we have already commenced the Services then the above shall no longer apply as noted further elsewhere in these General Terms.
3.6 Following the Commencement Date, no order may be cancelled by you except upon agreement by us in writing. Without prejudice to any other right or remedies, if we agree to cancellation, we reserve the right to charge a cancellation fee to cover all costs, expenses and/or other losses (including lost profit) arising as a result of any cancellation (Cancellation Fee). This clause does not affect your rights arising out of any breach by us, or your statutory rights if you are a Consumer.
3.7 Any recommendation or advice given by us, our employees or agents to you regarding the Deliverables which is not confirmed in writing by us as having contractual effect is followed or acted upon entirely at your own risk, and accordingly we shall not be liable for any such advice or recommendation which is not so confirmed. Any typographical, clerical or other error or omission in any sales literature, estimate, quotation, price list, acceptance of offer, invoice or other document or information issued by us shall be subject to correction without any liability on our part.
4. OUR SUPPLY OF SERVICES AND PRODUCTS
4.1 In consideration for payment by you of the Charges, we shall provide the Deliverables set out within the relevant Order Terms, or otherwise agreed between the parties.
4.2 We undertake that the Services will be supplied using reasonable skill and care, and performed in a good and workmanlike manner, using appropriate skills and experience, and having regard to the nature of the Deliverables and the requirements of the Specification. We reserve the right to amend Specification or Deliverables from time to time, if reasonably required, including where and statutory or legal requirement relating to the Deliverables has changed or where the change does not substantially impact the fundamental nature or quality of the Deliverables.
4.3 Product photographs are intended to illustrate the particular model of a Product, they may not reflect the Product as sold e.g. a Product's true colour may not exactly match that shown on your device or in our marketing or its packaging may be slightly different. Unless specifically stated otherwise in the Order Confirmation, weights, bars and other accessories shown in any photographs are not included. Because our products are handmade, all sizes, weights, capacities, dimensions and measurements indicated on our website can be out by up to 5%. Unless specifically stated, weights, bars and other accessories shown on photographs are not included - please contact our customer service team for further details on any particular Product if you are in any doubt.
4.4 If we're making or supplying the Product to measurements you provide, you're responsible for making sure those measurements are correct.
4.5 Some of our Products are sold subject to guidelines and instructions (our guidelines and instructions are generally available in product manuals, which may be linked via the QR code on the packaging of the relevant Product). It is your responsibility to ensure that you, and/or other users of the Products, are fully aware of all relevant guidelines and instructions before using the Products. Please seek professional medical advice before use of any fitness and exercise related Products to minimise the risk of injury. Always consult your doctor before using any fitness or exercise Product.
4.6 We shall use reasonable endeavours to provide the Deliverables within a reasonable time. However, timing of performance of our obligations under the Agreement shall not be of the essence, and we shall not be liable for contract delays, including those attributable to third parties. Any timeframes specified shall be estimates only.
4.7 You acknowledge that you have assessed for yourself the suitability of the Deliverables for your requirements. We do not warrant that the Deliverables will be suitable for such requirements, nor that any use of the Deliverables will be uninterrupted or error free. The Deliverables are (generally, but not exactly) as described in our catalogues or other materials from time to time, as modified by any applicable Specification. If we are making or supplying the Deliverables to measurements you provide, you are responsible for making sure those measurements are correct.
4.8 Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform its duties and obligations under the Agreement and that those persons signing the Order Terms, if any, are duly authorised to bind the party for whom they sign.
4.9 We may, upon giving notice to you, appoint a suitably qualified sub-contractor to perform any part of the Services on our behalf. You will continue to be liable to pay our Charges as provided in Clause 10 below, and shall not be liable directly for any of the fees of any such sub-contractor.
5. DELIVERY AND YOUR ACCEPTANCE OF PRODUCTS AND SERVICES
5.1 The costs of delivery of the Deliverables will be set out in the Order Terms. We shall use reasonable endeavours to deliver the Products to the location set out in the Order Terms or such other location as the parties may agree (Delivery Location) at the time agreed between the parties. Unless otherwise expressly agreed the Delivery Location shall be deemed to be kerbside at the address which you specify, and we shall not be responsible for bringing Products into the building, or installing them in situ at your premises. Where the Delivery Location is otherwise than at our premises from time to time, please note that additional charges may apply, which we shall inform you of in advance, and all prices quoted are on an ex works basis (according to Incoterms 2010) from our premises unless specified otherwise. Two clear Business Day’s notice must be given to us of any change likely to affect delivery for the change to be implemented (for example if you change your order as set out at clause 3.4), and you will be liable for any fees we incur as a result of any change (including increased delivery charges, for example).
5.2 Delivery of the Products shall be completed on the Products' arrival at the Delivery Location. We shall not be liable for any delay in delivery of the Products that is caused by your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Products, or your failure to take delivery of the Products.
5.3 We may deliver the Products by instalments. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
5.4 Where you fail to have adequate facilities or utilities available to physically allow delivery and installation under the terms of this Agreement by us or our approved sub-contractors, including to have the location prepared for delivery and installation by us, or make personnel available to facilitate access to any location, or otherwise circumstances arise which are not-attributable to our acts or omissions but which prevent or delay delivery (including the occurrence of any Unsuitable Conditions), we shall not be liable for any such failure, provided that we use all reasonable endeavours to facilitate the delivery of the Deliverables and keep you appraised as soon as reasonably possible of all relevant issues.
5.5 If you fail to accept or take delivery of any Products within one calendar week of us notifying you that the Products are ready, then except where such failure or delay is caused by our failure to comply with our obligations under the Agreement then delivery shall be deemed to have taken place at 9.00 am two Business Days following the day on which we notified you that the Products were ready, and we reserve the right to either store the Products until delivery takes place, and charge you for all related costs and expenses (including insurance), or to cancel the Agreement and charge you a Cancellation Fee.
5.6 Due to the size of certain Products, at times we may have to use oversized pallets which are too large to be offloaded via a tail lift delivery. In this instance it is your responsibility to offload the delivery with a forklift truck or by arrangement of additional labour at the delivery point to manually breakdown and offload the goods from the bed of the truck. We reserve the right amend the Charges to reflect any additional delivery charges incurred by us due to your failure to arrange the offloading.
5.7 Any claim by you which is based on any defect in the quality or condition of the Deliverables or their failure to correspond with Specification (including loss or damage in transit) shall (whether or not delivery is refused by you) be notified to us within 48 hours from the date of delivery of the Products or completion of the Services or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. You shall be deemed to have accepted the Products following such period if no issues are raised.
6.1 If we have not manufactured the Products that we supply to you, we will use reasonable endeavours to ensure that, upon your request, we will pass on and you will receive the benefit of any third-party manufacturer warranties which apply to the relevant Products.
6.2 Where we are the Manufacturer for the Products we supply to you, the Products shall have the benefit of our standard manufacturer’s warranty (which is included in the Charges) and shall endure for the shorter of: (a) a period of six (6) months from the date of delivery of the Products (inclusive); and (b) for the period of time specified in respect of the relevant Products on our website at the time of sale to you, beginning on the date of delivery of the Products (inclusive) (the Warranty Period) (the Blk Box Standard Warranty). Any Product specific warranty limitations or conditions set out on our website at the relevant listing for the relevant Products shall also apply.
6.3 If you are not a Consumer, the Blk Box Standard Warranty shall be, where you are not a Consumer, your sole right, remedy and warranty with respect to any defective Products supplied by us. In particular, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreement. If you are a Consumer, the Blk Box Standard Warranty is without prejudice to your statutory rights.
6.4 The Blk Box Standard Warranty is that the Products will be of reasonably satisfactory quality and durability and substantially fit for the purpose of use in a commercial or home gym environment for the purposes for which they are intended/designed by us, for the duration of the relevant Warranty Period, subject always to such warranty excluding (a) fair wear and tear; (b) intentional damage or mis-use, negligence or abnormal storage or working conditions (unless you can prove this was caused by us or our contractors during the provision of the Services), (c) accidental loss or damage not attributable to our negligent or wrongful actions or omissions; (d) Products which you cannot demonstrate have been satisfactorily maintained, used, treated and cared in accordance with any written instructions provided by us, and general industry standards (whichever standard is higher); (e) Products you have continued to use or permit the use of having given us notice in accordance with Clause 6.5; (f) defects which arise as a result of our following any drawing, design or Specification supplied by you; (g) alterations to the relevant Products made without our prior written consent; (h) Products you refuse to permit us to examine (or in respect of which you fail to provide us with insufficient evidence) to determine the nature of the alleged defect; and (i) warranty claims notified to us later than 14 days after you become or ought reasonably to have become aware of the circumstances giving rise to the claim.
6.5 The Blk Box Warranty does not apply to or include consumable parts, including the following: cables, belts, upholstery, ropes, ladders, spring loaded adjustment pins, pulley wheels, pulley wheel bearings, all springs, all loose rubber weights, fixed rubber barbell and dumbbells ends. Occasionally we sell used or ex-display Products, or Products which are sold on clearance which have identifiable damage. Such Products may be partially or fully boxed/assembled and may have some sort of cosmetic damage, which shall be described or identified in the Product listing. Such damage shall not be covered by the Blk Box Standard Warranty.
6.6 We do not have any obligation to support any Products, whether by spare parts or repairs following the end of the Warranty Period for such Products, except as otherwise expressly agreed in writing or where you are a Consumer exercising your statutory rights.
6.7 If any Product becomes defective within the Warranty Period, you must contact us using our portal for Blk Box Standard Warranty claims available on our website providing all evidence and details we require in connection with your claim, including as set out in the portal. If we determine that the Products were defective during the Warranty Period and are covered by the Agreement then, if you are not a Consumer, your sole remedy will be to a repair or replacement of the Products (as is reasonable in the circumstances). If you are a Consumer, you will be entitled to a repair or replacement of the Products or a refund for the same (as is reasonable in the circumstances).
6.8 The Blk Box Standard Warranty shall apply to any repaired or replacement Products supplied by us, provided that the Warranty Period shall not be extended beyond the period originally applicable to the relevant Products as a result of such repair or replacement.
7. RETURNS AND REFUNDS OF PRODUCTS AND/OR SERVICES
7.1 IMPORTANT – PLEASE READ CAREFULLY: Anything to the contrary in the Agreement notwithstanding, you acknowledge and agree that, once the relevant Services have commenced, you waive any right to a refund and/or exchange for any bespoke Products, any Products that have been installed in situ and/or the relevant Services (with the exception of any faulty Products).
7.2 Products. We understand at times due to size, colour or type, some Products might not be right for you. We are (subject to the following conditions) happy to accept a returned Product in a new resalable and unused condition, in its original packaging within 30 days from the date of you receiving the Product for a refund.
7.2.1 Refunds are subject to the following conditions: (a) you can't change your mind about an order for Products that are made to your specifications or are clearly personalised or for an order for Products which are sealed for health protection or hygiene purposes, once these have been unsealed after you receive them; (b) if you change your mind about a Product you must let us know no later than 30 days after the day that you receive your Product (as applicable). If the Products are split into several deliveries over different days, the period runs from the day after the last delivery; (c) we will not accept returns that are without the original documentation or return form; (d) returns and the costs for collection are at your own cost; (e) we will only accept returns where the Products are in a new resalable condition. The Product must not be defective or used in any manner, and must contain all original parts and accessories. This must include all original packaging and tags.
7.3 Products are faulty and/or you are owed a refund due to our acts or omissions: If we have notified you that you are entitled to a refund in accordance with clause 6.7 (i.e. because the Products are defective during the Warranty Period); or in accordance with clause 3.4 (i.e. because we have made substantive or significant changes to the Product(s) or in accordance with clause 3.3 (i.e. because there is an error or omission in any of our sales literature, estimate, quotation, price list, acceptance of offer, invoice or other document or information issued by us, including scenarios where any Product has been mispriced by us) then you will be entitled to a refund of Charges paid for the relevant Product.
7.4.1 If you are a Consumer then, for Services bought off-premises e.g., by mail order, over the telephone, you have 14 days following the Commencement Date to change your mind about your purchase and receive a refund of what you paid for these Services (subject to the following conditions). However, as per clause 7.1 above, if you have agreed that we will provide the Services within 14 days of the Commencement Date or if the Services have been completed, you cannot receive a refund for any Services you received before you change your mind.
7.5 How to return your Products
7.5.1 Please see our Returns Policy available on our website for further information on how to return your Products.
7.5.2 If you return the Products to us via a courier, or other delivery service provider, you should keep a receipt or other evidence from the delivery service that proves you have sent it and when you sent it. If you don’t do this and we don’t receive the Products at all or within a reasonable time we won't refund you the price.
7.5.3 If we provide a pre-paid return label, the pre-paid label must be used. If you send your Products back using an alternative method we will not be responsible for the costs incurred in doing so.
7.6 Condition and Deductions from Refunds
7.6.1 Subject to the conditions specified herein and in the Returns Policy, including the Products being eligible for a refund, we will refund you any amounts which are due to you for the relevant Products as soon as we reasonably can, and in any event within 14 days (where possible), after receiving the Products back from you.
7.6.2 Any items are returned at your own risk. We strongly advise you to take care when returning items to us for example, by ensuring the Products are correctly addressed and adequately packaged. Items that arrive back damaged or destroyed as a result of poor packaging will not be accepted. These Products will be resent to you at your expense.
7.6.3 Returns and the costs for collection are at your own cost, unless you validly returned Products because the Products were faulty. The maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method that we offer (assuming you are based in the UK or Ireland). We don't refund any extra you have paid for express delivery or delivery at a particular time. We don’t cover any delivery refunds to or from destinations outside of the UK or Ireland.
7.6.4 Products must be returned with all original parts and components (unless we agree otherwise in writing with you). Any Products that arrive back with damage and parts, accessories, accompanying gifts or packaging missing will either not be refunded and will be left on our premises for collection by you, or we may, at our sole discretion, deduct money from any refund to reflect the value of such damage or missing goods, based on our reasonable assessment of the diminution in value (including if we believe (on examination of the returned Products) that they exhibit use (including self-assembly and attempts at disassembly)). We will not collect any unboxed or unpackaged Products (if we are arranging collection of Products from you).
7.7 Payment of refunds
7.7.1 We will make any refunds due to you by the method you used for payment.
8. TITLE AND RISK
8.1 In the case of Products, risk of damage to or loss of such Products shall pass to you: (a) in the case of Products to be delivered at our premises, at the time when we notify you those Products are available for collection; or (b) in the case of Products to be delivered otherwise than at our premises, at the time of delivery or, if you wrongfully fails to take delivery of the Products, the time when we attempted to deliver them.
8.2 Title to any Products shall not pass to you until we have received payment in full (in cash or cleared funds).
8.3 Until title to the Products has passed to you, you shall: (i) hold the Products on a fiduciary basis as our bailee and not resell them or make them subject to any pledge or charge by way of security in respect of any indebtedness; (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Products; (iii) maintain the Products in satisfactory condition; (iv) notify us immediately if you become subject to any of the events listed in Clause 14.3(b); and (v) give us such information relating to the Products as we may require from time to time.
8.4 If, before title to the Products passes to you, you become subject to any of the events listed in Clause 14.3(b), or we reasonably believe that any such event is about to happen and notify you accordingly, then, provided the Products have not been resold, without limiting any other right or remedy we may have, we may require you to deliver up the Products and, if you fail to do so promptly, enter any premises where the Products are stored in order to recover them.
9. YOUR OBLIGATIONS
9.1 We may need access to your information (which shall be accurate and complete in all material respects), tools and resources whilst providing the Deliverables. You shall provide free access to these to the extent reasonably requested by us for the purposes of performing our obligations under the Agreement and shall generally co-operate with us in all matters relating to the Deliverables.
9.2 You also agree to grant us access to any relevant premises to provide any contracted Deliverables on the dates agreed between the parties, and to ensure access routes are clear and accessible for any Products.
9.3 You acknowledge that, in quoting for and providing the Deliverables, we rely on you to, in sufficient time, provide us with any information and instructions required to allow us to provide the Deliverables, and do not seek to establish the reliability of such information. Accordingly, you: (i) undertake to provide complete and accurate information about anything which may be relevant to the Deliverables and to provide such other information as we may reasonably request; and, (ii) warrant that any such information provided is accurate and complete in all material respects, and not misleading.
9.4 You also agree to, to the extent necessary, prepare the relevant site for the provision of the Deliverables, and to obtain and maintain all necessary licences, permissions and consents (including planning permission and building control approvals) which may be required for the Deliverables before the date on which the Deliverables are to be installed.
9.5 You shall be solely responsible for and will ensure that there are adequate facilities or utilities available to allow provision of the Deliverables by us or our approved sub-contractors, including making personnel available to facilitate access and meet any requirements that we provide to you in writing and any of our other reasonable requirements, including procuring any mechanical devices required to make the physical delivery and undertaking any preparatory work required to enable the Products to be delivered and properly installed.
9.6 You will take all necessary measures to protect our personnel from exposure to any safety or health hazards on any relevant premises. You will also inform us of any pre-requisites and safety regulations required for the relevant premises. You acknowledge that we are not obliged to carry out any Services in unhealthy or dangerous surroundings, including where there is a risk to health and safety that you have not prevented or mitigated to an acceptable level.
9.7 You shall also keep and maintain all materials, equipment, documents and other property belonging to us (Our Materials) at your premises or your client’s premises in safe custody at your risk, maintain Our Materials in good condition until returned to us, and not dispose of or use Our Materials other than in accordance with our instructions or authorisation.
9.8 To the extent applicable, you acknowledge that you will retain responsibility at all times for compliance with all relevant laws, protocols and regulations with respect to Products delivered to you, as well as responsibility for all costs of such compliance.
9.9 If our performance of any of our obligations in respect of the Deliverables are prevented or delayed by any of your acts or omissions or by your failure to perform or delay in performing any relevant obligation (Your Default), or otherwise in the event of Your Default (i) we shall, without limiting our other rights or remedies, have the right to suspend provision of the Deliverables until you remedy Your Default, and to rely on Your Default to relieve us from the performance of any of our obligations to the extent Your Default prevents or delays our performance of any of our obligations; (ii) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure to perform, or delay in performing, any of our obligations where such failure or delay is attributable to Your Default; and (iii) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from Your Default, including labour costs at our then standard hourly rates, storage or forklift hire, transport, accommodation, and equipment storage costs. We may also revise the Charges where we feel this is reasonable in light of Your Default.
9.10 You shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for payment of any duties on them.
9.11 On completion of the Services, you shall inspect the Deliverables and confirm if there are any issues. You shall ensure that the Products are sufficiently assembled and installed before use and you will be solely responsible for ensuring that the Product is used correctly in the intended manner.
9.12 You will indemnify, hold harmless and defend us from any liability, loss, damage, costs, claim or lawsuit (including reasonable legal costs) arising out of your or your customer’s/user’s negligent acts or omissions regarding the installation, use, handling, and maintenance of the Products, either singly or in combination with other products.
10.1 The Charges set out within the Order Terms apply only to the provision of the Deliverables set out within Order Terms. If no price is quoted, the price for Products shall be as set out in our published price list as at the date of provision of the Deliverables and the price for Services shall be calculated on a time and materials basis at our then prevailing standard rates for such Services (Our Rates).
10.2 Unless specified otherwise in the relevant Order Terms, all Charges for Products quoted within the relevant Order Terms shall be exclusive of all costs and charges of packaging, insurance, transport and delivery of the Products, which shall be quoted separately, and paid by you when pay for the Products. Installation is not included unless quoted as a specific Service in the Order Terms. If we deliver any Products, our only obligation is to deliver kerbside to any ground floor premises at which you reside / are based. You are liable to pay re-delivery fees if any access or vehicle restrictions are not advised prior to delivery.
10.3 As set out at clause 3.5, where there is any request by you or the client to change the delivery date(s), quantities or types of Products ordered, the specification for Products, additional Charges may apply, which we will advise you of in writing.
10.4 Where we incur any additional cost in respect of the supply of the Deliverables beyond the prices quoted in the Order Terms due any factor beyond our control (including FX fluctuations, increases in import duties/taxes, increases in labour, materials and other manufacturing costs, any request by you to change the delivery date(s), quantities or types of Deliverables ordered, or the Specification, any delay caused by your instructions in respect of the Deliverables or your failure to give us adequate or accurate information or instructions in respect of the Deliverables, we shall absorb those costs up to a maximum of 105% of the total value of the Charges quoted in the relevant Order Terms. Thereafter, additional Charges may apply, which we will advise you of in writing. Any additional Charges required under this agreement shall be calculated, in respect of Services, at Our Rates, and in respect of Products, at the price paid by us for those Products.
10.5 Unless specified otherwise in the relevant Order Terms, we shall invoice you for the Charges specified in the Order Terms or otherwise provided for under the Agreement, in respect of the Deliverables, on or at any time after the Commencement Date. You must pay all undisputed Charges set out within each invoice in full and cleared funds (in pounds sterling) within 30 calendar days of the date of the invoice. Time for payment shall be of the essence of the Agreement.
10.6 Where the Order Terms stipulate that Charges will be invoiced subject to our achievement of certain milestones (as further specified in the relevant Order Terms), you acknowledge and agree that, where fulfilment of a milestone has been delayed, including where we do not meet a milestone due to circumstances beyond our reasonable control, and/or where such delays arise other than due to our fault or breach of the Agreement, (e.g. delay in setup of any premises at which Products are to be installed), then all Charges will be immediately due and payable by you at any time once a time period of thirty (30) days following the original milestone has lapsed.
10.7 Where you dispute any invoice, you shall notify us within 7 calendar days in writing. We shall provide all such evidence as may be reasonably necessary to verify the disputed invoice, and the parties shall negotiate in good faith to attempt to resolve the dispute promptly. We reserve the right not to supply any further Deliverables to you while such a dispute is ongoing. Where only part of an invoice is disputed, you shall pay the undisputed amount on the due date for payment as set out within Clause 10.5 (or otherwise provided for in the relevant Order Terms). If the parties have not resolved the dispute within 30 days of your notice of dispute, we reserve the right to terminate the Agreement, whereupon all Charges payable under the Agreement shall become immediately due and payable.
10.8 All sums payable under the Agreement are exclusive of VAT and any other sales or similar taxes, custom duties, withholding taxes or similar charges, for which you shall be responsible. If the rate of VAT changes between your order date and the date we supply the Deliverables, we adjust the rate of VAT that you pay, unless you have already paid in full before the change in the rate of VAT takes effect.
10.9 Unless otherwise stated in these General Terms or agreed by us in writing, you shall have no right to any refund of the Charges paid or payable under the Agreement including on the termination of the Agreement.
10.10 Interest shall be chargeable on any Charges overdue at the rate of 12% above the base rate of HSBC Bank plc as applying from time to time to run from the due date for payment until receipt by us of the full amount due whether or not after judgement and without prejudice to any of our other rights or remedies.
10.11 Without prejudice to any other remedy available to us, if you fail to make any payment when due this will be deemed a material breach of contract and we may, at our sole option and without incurring any liability, suspend our performance until such time as the overdue payment is made or you have provided assurances acceptable to us that the overdue payments will be made. In the event of any such suspension of performance we shall be entitled to make an adjustment to the delivery schedule and Charges to reflect the delay and costs caused by the suspension.
10.12 We shall, without prejudice to any other remedy available to us, have in respect of all debts due from you under any Agreement, a general lien on all of your Products (i.e. Products in which legal title has transferred to you) (Your Products) in our possession for whatever purposes, and whether worked upon or not, and shall be entitled to retain possession of Your Products until all charges due any Agreement between you and us have been paid.
10.13 Without prejudice to any other remedy available to us, if any sum due from you to us under any Agreement between us has not been paid within 3 weeks from its becoming due, we may, upon giving to you 7 days’ notice in writing of our intention to do so (unless all such sums have in the meantime been paid), sell (in any manner we see fit) any or all of the Your Products in our possession. The net proceeds of such sale shall after payment of the costs of such sale be applied in or towards payment or satisfaction of the debts, or liabilities owing by you to us, insofar as they are presently payable and any residue shall (subject to a like lien for debts or liabilities not presently payable as existed upon Your Products prior to sale) be paid to you.
10.14 All Charges due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding except as required by law. We may, without limiting our other rights or remedies, set off any amount owing to you by us against any amount payable by us to you.
11. WE USE YOUR PERSONAL DATA AS SET OUT IN OUR PRIVACY NOTICE
11.1 How we use any personal data you give us is set out in our Privacy Notice which can be found on our website. Otherwise please contact our Customer Service Team if you would like a copy of our Privacy Notice.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Any IP Rights which the relevant party to the Agreement can demonstrate are already held by it at the date of the Agreement or which at any time after the date of the Agreement have been acquired or developed by it independently of the provision of the Deliverables, and of the use of any Confidential Information of the other party, and all modifications thereto and derivative versions thereof created at any time (Background IP) shall remain the sole property of that party.
12.2 You hereby grant to us a royalty-free, non-exclusive, non-transferable licence to use your Background IP, if any, as required to allow us to perform our obligations under the Agreement.
12.3 You acknowledge that, in respect of any third-party IP Rights in the Deliverables, your use of any such IP Rights is conditional on our obtaining a written licence from the relevant licensor on such terms as will entitle us to license such rights to you.
12.4 Any IP Rights, other than Background IP, created or developed by us in the course of provision of the Deliverables (Foreground IP) shall be our sole property.
12.5 If we manufacture any products, in accordance with your Specification or otherwise using your Background IP, you shall indemnify and hold us harmless against all loss, damages, costs and expenses awarded against or incurred by us in connection with or paid or agreed to be paid by us in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from our use of your Specification or Background IP.
13. LIMITATION OF LIABILITY – YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
13.1 Nothing in the Agreement shall exclude or limit our liability for: (i) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; or (iii) for any other liability which cannot be excluded or limited under applicable law.
13.2 Subject to Clauses 13.1 and 13.3, our total liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed a total aggregate amount equal to 100% of the Charges paid to us pursuant to the Agreement, in respect of the Deliverables the subject of the claim, in the period of 12 months considered retrospectively from the date the cause of action arose.
13.3 Subject to Clause 13.1, we shall not in any circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit, loss of contracts, loss of business or business opportunities, loss of production, loss of turnover or revenue, loss of availability, loss of anticipated savings, wasted expenditure, loss of reputation, loss of goodwill or loss of use suffered or incurred directly or indirectly by you, or for any consequential, indirect or special loss or damage howsoever arising and of whatsoever nature (even if we had been advised of the possibility of you incurring the same) or any punitive or exemplary damages.
13.4 Subject to Clause 13.1, the express terms of the Agreement shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by law, custom or otherwise, all of which are excluded to the fullest extent permitted by law.
13.5 We shall have no liability to you to the extent that such liability would not have arisen but for Your Default.
13.6 We may, during the supply of the Deliverables, make statements about or recommendations of third-party products or services. We give no warranty in relation to such products or services, and you shall rely solely on the warranties and remedies provided by any such third party with whom you may contract.
13.7 Where you are a Consumer, this clause 13 shall be without prejudice to your statutory rights.
14. TERM AND TERMINATION
14.1 The Agreement shall come into effect upon the Commencement Date, and, subject to other terms of the Agreement, shall continue in force until we cease providing Deliverables to you and all outstanding Charges owing to us by you have been paid in full, or the termination of the Agreement in accordance with its provisions, whichever is sooner.
14.2 If you are a Consumer, we can end the Agreement with you and claim any compensation due to us if you have not met your responsibilities under the Agreement (including where you don't make any payment to us when it's due and you still don't make payment within 30 days of our reminding you that payment is due; and where you don't, within a reasonable time of us asking for it, provide us with information, cooperation or access that we need to provide the product, for example, access to any relevant premises to provide the agreed Products and/or Services).
14.3 If you are not a Consumer, without prejudice to any other rights to which it may be entitled, either party may give notice in writing to the other terminating the Agreement with immediate effect if: (a) the other party commits any material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified of the breach; (b) a petition is filled, an order is made, or a resolution is passed for the winding up or bankruptcy of the other party or if an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or if such an administrator is appointed or if documents are filed with the Court for the appointment of an administrator or if notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying charge holder, or if a receiver is appointed of any of the other party’s assets or undertaking or if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order or if the other party takes or suffers any similar or analogous action in consequence of debt; or (c) a party ceases, or threatens to cease, to trade.
14.4 We may also terminate the Agreement at any time on giving you one month’s notice in writing, or immediately giving notice in writing where you are in default of the Agreement (including as regards payment of any outstanding sum, failure to give delivery instructions or failure to take delivery of Products at the time agreed (if any) or, if no time is agreed, within a reasonable time), where you are in default of any other agreement entered into between us, or where we reasonably suspect that you may in an adverse financial position.
15. EFFECTS OF TERMINATION
15.1 Termination of the Agreement shall be without prejudice to any rights or liabilities accrued at the date of termination.
15.2 Upon termination, you shall, at our request, promptly return to us or otherwise dispose of as we may instruct any Confidential Information which you may have in your possession or under your control and pay to us all outstanding Charges, including interest, due under the terms of the Agreement (which shall immediately become due in full), and, in respect of Deliverables supplied but for which no invoice has yet been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt. You shall also return all of Our Materials and any Deliverables which have not been fully paid for.
15.3 The terms of clauses 1, 2, 9.8, 10.9, 10.10, 12, 13, 14, 15 and 16 shall survive expiry, variation or termination of the Agreement.
16.1 Confidentiality: Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not, without the prior written consent of the other, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as strictly necessary for the performance of its rights and obligations under the Agreement. The provisions of this clause 16.1 shall not apply to any information which: (a) is or comes into the public domain without breach of the Agreement; or (b) was in the possession of the receiving party prior to receipt from the disclosing party without an obligation of confidence; (c) was obtained from a third party free to divulge such information; or (d) is required by law to be disclosed to any person who is authorised by law to receive the same (after consultation, if practicable, with the disclosing party). Each party shall notify the other party if it becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party’s reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person.
16.2 Use of Products Internationally: You shall be deemed to have satisfied yourself that any Products supplied by us comply with the safety regulations of the country or state in which they are to be used (other than the UK) and you shall indemnify us in full for any loss or damage whatsoever incurred by us in the event that the Products are found not to comply with such safety regulations.
16.3 No Assignment or Sub-Licensing: You may not assign, sub-license, sub-contract, mortgage or otherwise transfer, dispose or otherwise deal with the Agreement or any of your rights or obligations under it without our prior written consent, such consent not to be unreasonably withheld or delayed. We shall notify you of any assignment or sub-contracting of our rights and obligations hereunder.
16.4 Force Majeure: Neither party shall be liable to the other party for any delay or failure to perform its obligations under the Agreement to the extent and for so long as such delay or failure results from circumstances beyond its reasonable control, including an Act of God, weather of exceptional severity, war, military operations, terrorist action, riot, fire, the occurrence of Unsuitable Conditions, difficulties in obtaining raw materials, labour, fuel, parts or machinery, explosion, accident, flood, lightening damage, strikes, industrial dispute, epidemic, pandemic, lock-outs, delay in transport, shortage of fuel, default of supplier, embargo act or demand of any government department or local authority (including customs delays), other act or omission of any party for whom that party is not responsible or any other cause whatsoever beyond that party’s reasonable control, except that the obligations to make payment when due will continue. If any such delay occurs then (unless the cause frustrates or renders impossible or illegal the performance of the contract, or otherwise discharges it) the period for that party to perform its obligations shall be extended by such period (not limited to the length of the delay) as is reasonably required for that party to complete the performance of its obligations. This shall be provided that the party impacted by such circumstance notifies the other party within ten Business Days of becoming aware of such event. If any such event continues for a period exceeding six months, either party shall have a right to terminate the Agreement on 30 days’ written notice to the other party, without liability.
16.5 Waiver: The failure of either party to enforce or to exercise any term of the Agreement does not constitute a waiver of such term and shall in no way affect that party's right to later enforce or to exercise it.
16.6 Severability: If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
16.7 Entire Agreement: The Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between them whether oral or in writing. Any samples, drawings, descriptive matter, advertising or other written or unwritten representations issued by us or our employees and any illustrations or descriptions of the Deliverables contained on our website or in our advertising material are issued or published for the sole purpose of giving an approximate idea of the Deliverables described in them. They shall not form part of the Agreement or have any contractual force, unless they form part of the Order Terms or specifically express otherwise.
16.8 Third Party Rights: No person who is not party to the Agreement shall have any rights under or in connection with it, either under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.9 Partnership or Agency: Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
16.10 Independent Contractors: The relationship of the parties is that of independent contractors dealing at arms' length.
16.11 Disputes and Complaints: These terms are governed by Northern Irish law and wherever you live you can bring claims against us in the Northern Irish courts. If you live in Wales, Scotland or Northern Ireland, you can also bring claims against us in the courts of the country you live in. We can claim against you in the courts of the country you live in. If you are a Consumer, our Customer Service Team who will do their best to resolve any problems you have with us or our Deliverables at: email@example.com or +44(0) 28 9045 4123.
16.12 Remedies: Except as herein expressly provided otherwise, the rights and remedies provided in the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.13 Publicity: The provisions of Clause 16.1 notwithstanding, we reserve the right to publicise the fact of the Agreement, your identity, and details concerning the nature of the Deliverables provided to you for, inter alia, marketing and promotional purposes.