TERMS OF SERVICE
These Terms and Conditions (“Terms”) are the Terms that apply to the purchase of Goods and Services from Cockerel Drinks Ltd a company registered in England, number 12638426, whose registered address is 44 Roding Road, London, England, E5 0DW (“CDL”)
1. Definitions and Interpretation
1. In these Terms:
1. “Agreement” means these Terms including any agreement, letter of intent, quotation, and any schedules, variations and amendments agreed signed and initialled by the Parties.
2. “Agreed Date” means the date on which the provision of the Services will commence as agreed by the Parties;
3. “Agreed Times” means the times which the Parties shall agree upon during which CDL shall have access to the Property to render the Services.
4. “Business Days” means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in England and Wales.
5. “Client” means the individual or business that requires the Services subject to these Terms and any Agreement;
6. “Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with any Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
7. “Corkage” means the charge for a Client who wishes to purchase and provide wine for attendees/guests at any Function and it is not provided by CDL as part of the price in any Agreement.
8. “Final price” means the total of all sums payable which shall be shown on the invoice issued in accordance with these Terms.
9. “Goods” means the products supplied by CDL;
10. “Function” means the complete rendering of the Services;
11. “Party” mean CDL or Client;
12. “Parties” means CDL and Client;
13. “Property” means the Client’s property or premises, as detailed in the Order and any Agreement, at which the Services are to be rendered;
14. “Quotation” means the quotation given by CDL for the provision of Goods and/or Services quoted to the Client by CDL.
15. “Services” means including but not limited to drinks, cocktails, bar supply, bar management and ancillary drinks catering and supply services to be provided by CDL as detailed in these Terms.
16. “Work Area”means the part of the Property within which the Services are to be delivered.
2. The headings of these clauses shall not affect the interpretation thereof.
3. If there is any inconsistency between what is set out in any of the conditions in these Terms and what is set out in any communication in writing or variation (“Variation”) agreed in writing between the Parties the Variation shall prevail.
4. These Terms supersede any representations, documents, negotiations or understandings, whether oral or written, made, carried out or entered into before the date of receipt of these Terms, except that this clause shall not exclude liability in respect of any fraudulent misrepresentation.
2. Quotes, Estimates, Deposit and Acceptance of Works
1.CDL will not be under any obligation to provide an estimate to the Client.
2. Where a deposit on works is required it will be set out in any Quotation. The standard deposit is 50%.
3. All quoted prices are subject to VAT and are valid for three (3) months.
4. An Agreement shall not be deemed confirmed until any deposit or pre-payment for Goods and/or Services is made by the Client.
5. Unless agreed otherwise and set out in any Quotation any deposit paid shall be non-refundable.
6. CDL reserve the right to increase the initial 50% deposit amount (“Amended Deposit Fee” ADF) before any Function if the total amount set out in an Agreement increases by more than 20% or if CDL are required to pay new suppliers up front.
7. The ADF is non-refundable.
8. Where CDL seek an ADF the Client agrees to pay this amount on receipt.
9. Any failure to pay the ADF by the Client gives CDL the right to terminate any Agreement without penalty.
10. Any termination under sub clause 2.6 will not result in any deposit refund.
11. CDL’s Quotation is not an offer but merely an invitation to the Client to make an order for Goods and /or Services under the terms and conditions of the Quotation.
12. CDL will only be bound to estimates provided in writing to the Client, which have also been signed by an authorised representative of CDL.
13. CDL will not be bound to any estimates provided orally.
14. No variation or modification of or substitution for these Terms (even if included in or referred to in the document placing the order) shall be binding on CDL unless specifically accepted by CDL in writing.
15. CDL may refuse to accept an Agreement
1. where goods are not available;
2.where we cannot obtain authorisation for your payment;
3. if there has been a pricing or service delivery description error;
4. if you do not meet any eligibility criteria set out in our Terms; or
5. for any other reason at our sole discretion.
16. Any estimate supplied by CDL is subject to withdrawal at any time before receipt of an unqualified acceptance from the Client.
17. Any quote provided is not final and is subject to change dependent on variables of the Function which include but are not limited to, hire losses/breakages, access, number of drinks consumed, additional staff hours, additional requirements on the day, menu choices, hire requirements based on menu choices.
18. Unless otherwise specified, all estimates provided are done on an ‘as is’ basis, and are not a fixed price quotation or firm price.
19. In addition, CDL reserves the right to increase the price prior to any delivery of Services, equivalent to the increase of cost to CDL including additional materials, labour, equipment hire and transport since the date of the provided estimate (either done so in writing, email or orally), unless the final price exceeds the estimated price by more than 20%, by which the Client may cancel the contract provided it does so prior to any works commencing (including the order of labour, drinks, materials or equipment hired).
20. Any samples, drawings, descriptive matter or advertising issued by CDL, and any descriptions or illustrations contained in CDL's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of any Agreement (unless agreed in writing by the Parties).
21. CDL reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and CDL shall notify the Client in any such event.
22. Any estimate provided by CDL may be revised in the following circumstances:
1. If after the submission of the estimate by CDL, the Client instructs CDL in writing to provide additional works or services not referenced or detailed within the estimate.
2. If following the submission of the estimate by CDL, there is an increase in the cost of materials to be supplied.
3. If following the submission of the estimate by CDL, it is discovered further works and services need to be carried out which had not been anticipated.
4. If following submission of the estimate or works carried out, it is discovered that there was a manifest error when the estimate was prepared.
3. Prices, Fees and Payment
1. Prices are subject to alteration or withdrawal without notice.
2. Orders can only be accepted subject to the condition that Goods will be invoiced at prices ruling on the date of the Function unless otherwise stated on an official quotation of CDL.
3. CDL will seek confirmation of final numbers and dietary requirements at a designated time within any Agreement. Where numbers change 14 days prior to the event date CDL reserve the right to change pricing that remove any agreed discounts without penalty.
4. Where CDL quote for a designated number then any reduction will not trigger or result in a reduced charge .
5. Where CDL quote for a designated number then any additions will not trigger or result in a further discount
6. Unless otherwise stated prices are net excluding VAT.
1. Where any taxable supply for VAT purposes is made under any Agreement the Client shall, on receipt of a valid VAT invoice from CDL, pay to CDL such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7. Any dispute regarding VAT may be referred by the parties to HMRC for adjudication.
8. The charges for the Services shall be paid as follows:
9. A deposit of 50% of the estimated Final Price is payable forthwith on acceptance of the quotation issued by CDL;
10. Unless otherwise agreed between the Parties the deposit is non-refundable;
11. Unless otherwise agreed and set out in any Agreement, the Final Invoice price is payable within 14 days after the Function.
12. CDL shall not be precluded from charging the Client for any expenses reasonably incurred by the individuals whom CDL engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by CDL for the performance of the Services, and for the cost of any materials.
13. The Client shall pay each invoice submitted by CDL in full and in cleared funds to a bank account nominated in writing by CDL.
14. In the event that the prices of specific goods, labour and other products required or services increase during the period between the Client’s acceptance of the Quotation and the commencement of the Services, CDL shall inform the Client of such increase and of any difference in the Final price.
15. CDL shall invoice the Client when the provision of the Services is complete.
16. Payment is accepted by cash, cheque or bank transfer. Cheque payments are only accepted for deposit and will only be deemed paid upon receipt of cleared funds into CDL’s account.
17. In the event of non-payment or default in payment by the Client in accordance with agreed terms, CDL shall be entitled without prejudice to any other right or remedy to charge interest, as per the Late Payment of Commercial Debts (Interest) Act 1998, in respect of all invoices which are not wholly paid by the due date.
18. Sums payable pursuant to these Terms or any Agreement are exclusive of Valued Added Tax (“VAT”) which shall be paid at the prevailing rate providing it is properly detailed on an invoice in compliance with prevailing legislation.
19. Neither Party shall be entitled to set-off any sums in any manner from payments due or sums received in respect of any claim under these Terms or any Agreement at any time.
20. In the event of a cancellation of an Agreement by a Client before a Function the following percentages of the Charges will be charged and become payable by the Client as follows
21. 50% deposit as set out in sub clause 3.8;
1. Cancellation 7 days before any function 100% of remaining balance.
22. Where an event is designated as a late finish (after 11.30pm) there may be charges levied for staff transport which will be charged at a minimum of £20 per staff member unless set out in any Agreement.
23. All additional parking, tolls, congestion charges, vehicle taxes and vehicle related charges incurred during site visits and on the day of the event/function will be added to the Client’s final invoice.
4. Services
1. Prior to the start of the Function CDL may need to carry out a full inspection of the Property in order to ensure that the agreed Services are appropriate for the Property and can be rendered safely.
2. The Services shall be rendered in accordance with the specification and any accepted Quotation and in any Agreement (as may be amended by mutual agreement from time to time).
3. CDL may provide sketches, plans, diagrams or similar documents in advance of the Function. Any such material is intended for illustrative purposes only and is not intended to provide an exact specification of the Function nor to guarantee specific results.
4. Any special materials required and set out by the Client must be paid via cleared funds to CDL seven (7) working days prior to any agreed start date.
5. CDL shall ensure that the Services are rendered with reasonable care and skill and to a reasonable standard which is commensurate with best trade practice.
6. CDL shall ensure that all Goods and any products, parts, materials and other goods used in delivering the Services are in compliance with any relevant standards and are free of defects at the time of use.
7. In as much as is reasonably possible, CDL shall use its reasonable endeavours to ensure that no work done will have any effect on the Property outside of the Work Area.
1. Where any such effects as set out in sub clause 4.6 occur, CDL agrees to carry out all necessary remedial work in agreement with the Client.
8. CDL shall ensure they comply with any and all relevant codes of practice.
9,. If any damage is done by CDL during the course of the Function that is the fault of CDL, then CDL shall make good that damage, or be offered the opportunity to remedy any damage.
10. Where any inspections are required following the completion of the Function it shall be agreed between the Client and CDL to ensure that those inspections are carried out.
11. CDL will not be held liable for any circumstances which it could not have foreseen at the initial quote stage (the “Unforeseen Event”) and the Client agrees to pay any extra costs to remedy any Unforeseen Event that cause postponement or cessation of the Services, after the initial quote has been accepted by the Client.
12. CDL may at its sole discretion either accept or reject any request for additional Services made prior to any Function and will accept any such request only upon agreement in writing of the costs associated with such requests.
13. Any removal or rubbish or recycling will be agreed between the Parties. CDL reserves the right to charge the Client where charged at £1.10 per head. Organisation of removal of waste must be agreed between CDL and Client prior to the event start date.
14. Any complaint regarding the Services must be lodged with CDL in writing to the email address hello@cockandtaildrinks.com within 7 days from the finish of any Function.
5. Delivery
1. Where Client is purchasing Goods only and, unless otherwise agreed, delivery shall take place kerbside at the address supplied by the Client. Risk shall pass when the goods are delivered kerbside to the Client.
2. Goods shall be at the risk of the Client or their agent at the moment of arrival of the Goods at the point of delivery and before the commencement of unloading or, at point of loading if the Client or a carrier/agent is collecting the Goods representing the Client.
3. If by reason of the Client's default the goods are not taken up or delivered by the date specified in the contract, CDL may either treat the contract as repudiated or alternatively store the goods at the Client's risk and expense. Estimates of delivery dates and times are to be regarded as approximate only and CDL accepts no liability for any loss, injury, damage or expenses as a result of or consequent to any delay in delivery of goods.
4. Delay due to circumstances outside the control of CDL shall not entitle the Client to cancel any order or refuse to accept delivery. Offers for delivery from stock are made subject to goods remaining unsold on receipt of order.
5. Deliveries are Monday to Friday 8am - 6pm unless otherwise stated. Specific time slots or delivery times outside our standard delivery times may be negotiated by special arrangement and cost. Delivery times are estimates only. Any permits or access requirement must be obtained by Client and notified to CDL. If permits are not obtained by Client then Client agrees to indemnify CDL against any penalty charges levied against CDL for the delivery of goods.
6. Delivery vehicle parking must be within close and safe proximity to the delivery address.
7. The Client shall indemnify CDL against all claims for damages and liability whatsoever arising out of compliance by CDL with the Client’s delivery instructions. Failed deliveries are rechargeable at the full rate.
8. If and when required the Client shall provide all necessary assistance to CDL in unloading Goods at the point of delivery by way of a minimum two able-bodied helpers. It is the driver's responsibility to deliver the goods to within safe and practical distance to both themselves and the vehicle from the delivery point only and not into the delivery address.
9. The Client shall indemnify CDL against all claims for damages and liability whatsoever arising out of compliance by CDL with the Clients delivery instructions.
10. Failed deliveries are rechargeable at the cost charged or incurred to CDL.
6. Service or Delivery Defects
Under no circumstances will CDL be responsible for any defects which result from the work of third party contractors over which CDL has no control.
7. Allergies
1. CDL cannot guarantee that any produce on our menu has not come into contact with nuts, nut derivatives or other ingredients to which guests may have a serious allergic reaction. CDL therefore advise the Client to inform any attendee or guest at any Function of this Clause 7.
2. CDL request that any Client seeks advice on any severe allergy to nuts or other ingredients to talk to CDL directly to arrange an alternative to the chosen meal and sets it out in any Agreement.
3. For any other allergen information relating to the menu for the event/function, please email hello@cockandtaildrinks.com
8. Drinks and Catering
1. CDL cannot be held responsible for any food or drink provided directly by the Client or any other third party.
2. Drinks provided on a sale or return basis will be specified and agreed by the Parties prior to the event date. Cocktails, specialised items and soft drinks are not provided on a sale or return basis.
3. Wines are subject to availability. Vintages and prices may vary.
4. Where Corkage is agreed then the Corkage charge will be agreed and set out in any Agreement. CDL reserve the right to charge the cost of removal and disposal of any bottles where corkage is agreed.
5. Any unused consumable items including but not limited to food(s) foodstuffs, drinks (“Foodstuffs”) are the property of CDL and will be disposed of in accordance with appropriate Health Codes and CDL best practise. CDLs standard procedure is that they will not issue doggy bags, leave Foodstuffs for consumption after a Function or give Foodstuffs to be taken away from any Function.
1. Any specific request made to CDL under Clause 8.5 to leave Foodstuffs behind must be made, at the latest, at point of final payment made by the Client (unless agreed otherwise by the Parties) prior to any Function.
2. Where this request is made then CDL will only grant it with their written consent (such consent not to be unreasonably withheld or delayed).
3. It shall be a condition for the grant of such consent that the Client accepts full responsibility and liability for any Foodstuffs left behind (including any disposal or clean-up costs) under these sub clauses 8.5.2 and 8.5.3 .
4. CDL reserve the right to not leave behind any Foodstuffs that, in their professional opinion, is outside of any chill chain requirements or its perishability will provide any risk to any person or animal consuming the Foodstuffs.
9. Client’s Obligations
1. The Client is responsible for providing CDL accurate and detailed instructions relating to the provision of Services.
2. The Client is required to provide details to CDL of any changes that may affect the provision of services in reasonable time to enable actions to be taken to accommodate any new requirements.
3. The Client agrees to co-operate with CDL in all matters relating to the Services; and
1. provide CDL, its employees, agents, consultants and subcontractors, with access to the Premises as reasonably required by CDL; and
2. keep all materials, equipment, documents and other property of CDL (“CDL Materials”) at the Client's premises in safe custody at its own risk; and
3. maintain CDL Materials in good condition until returned to CDL;
4. and not dispose of or use CDL Materials other than in accordance with CDL's written instructions or authorisation.
4. If any consents, licenses or other permissions are needed from any third parties such as landlords, planning authorities, local authorities or similar, it shall be the Client’s responsibility to obtain the same in advance of the commencement of the Services.
5. The Client shall ensure that CDL can access the Property at the Agreed Times to render the Services.
6. The Client shall have the option of giving CDL a set of keys to the Property or being present at the Agreed Times to give CDL access. CDL warrants that all keys shall be kept safely and securely.
7. The Client shall ensure that CDL has access to electrical outlets and unless otherwise agreed a supply of hot and cold running water.
8. The Client shall ensure that any work area is kept clear of hazards, furniture, fixtures and fittings and out of use for the duration of the Function unless otherwise directed by CDL.
9. If the Client does access the work area at any time during the course of the Function they must observe all relevant health and safety rules and must comply with any additional instructions given to them by CDL .
10. The Client shall ensure that any Function attendee or guest consuming alcohol is over the age of 18.
11. CDL accepts no liability for any attendee or guest’s alcohol consumption during any function.
12. If CDL's performance of any of its obligations under any Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (“Client Default”) then without limiting or affecting any other right or remedy available to it, CDL shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays CDL's performance of any of its obligations; and
1. CDL shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from CDL's failure or delay to perform any of its obligations as set out in this clause 9.10.12; and
2. the Client shall reimburse CDL on written demand for any costs or losses sustained or incurred by CDL arising directly or indirectly from the Client Default.
10. Cancellation
1. Where a Client cancels then CDL will refund all monies paid as set out in Clause 4.
2. The Client agrees to indemnify CDL against any special food preparation and equipment that is already ordered by CDL, where CDL has liability for the cost, and the Client remains liable for these charges and will be invoiced.
11. Liability, Indemnity and Insurance
1. The Client shall indemnify CDL against all claims, demands, proceedings, actions, damages, costs, expenses and any other liabilities in respect of, or arising out of, the provision of the Services in relation to the injury or death of any person, or loss of or damage to any property including property belonging to CDL or CDL’s Client, financial loss arising from any advice given or omitted to be given by the Client any other loss which is caused directly or indirectly by any act or omission of the Client. This does not apply to the extent that such injury, death, loss or damage arises out of the act, default, or negligence of CDL, its employees, or agents not being the Client or persons engaged by the Client.
2. CDL will accept liability for:
1. death or personal injury resulting from its negligence;
2. fraud or fraudulent misrepresentation;
3. any other liability which cannot be excluded by law.
3. CDL will accept liability for direct physical damage to the tangible property of the Client to the extent it is caused by the negligence of CDL subject to the exclusions set out in clause 14.5. Except as provided in clauses 12.2 and 12.3, CDL’s total liability in respect of any one default under any Order shall not exceed the total amount being paid under that Order. If a number of defaults give rise to substantially the same loss or are attributable to the same or similar cause, then they shall be regarded as giving rise to only one claim. CDL will be afforded a reasonable opportunity to remedy any such default.
4. CDL shall not be liable for loss of profit or goodwill of the Client or any other person arising, directly or indirectly, from any breach of these Terms or any Agreement or for any other indirect or consequential damage whatsoever save as provided in this clause.
5. Except as provided in clause 12.2, CDL shall not be liable for:
1. loss of business, sales, profits, revenue, anticipated savings, (even where the same arise directly from a breach of these conditions), loss of use or corruption of electrical supply or software corruption, data or information;
2. special, indirect or consequential losses, even if foreseeable by or in the contemplation of CDL ; or
3. any claim made against the Client by any other person.
6. CDL shall ensure that he has in place at all times suitable and valid insurance.
7. CDL is not liable for any loss or damage suffered by the Client which results from the Client’s failure to follow any instructions given by CDL.
8. CDL will not hold any responsibility for any damage suffered to a part of any property where the damage is in whole or in part a consequence of a defect or weakness in that part of the Property.
9. CDL will not hold responsibility or liability for damage caused whilst connecting equipment for the delivery of the Function.
10. If damage to plaster and brickwork is caused it will be the Client’s responsibility to make good. CDL cannot accept responsibility for any damage to wallpaper, paintwork, tiles, carpet, furniture etc. .
11. The Client shall indemnify CDL against any costs, liability, damages, loss, claims or proceedings arising out of the Client’s failure to meet any of its obligations or any other breach of these Terms or any Agreement.
12. CDL cannot guarantee that any produce is totally free from nuts, nut derivatives or other ingredients to which guests of the Client may have an allergic reaction.
13. CDL cannot operate in a nut, gluten and/or allergen free environment.
14. It is the responsibility of the Client to advise guests with an allergy to nuts or other ingredients to contact CDL directly to arrange an alternative to the chosen meal and the Client agrees to indemnify CDL, including reasonable legal costs, against any claim form a third party for any claim made under the provisions of sub clauses 11.12 & 11.13, where CDL are not negligent.
15. CDL assumes no responsibility for any damage or loss of merchandise, alcohol, equipment, furniture, clothing or other valuables prior to, during or after the event.
16. CDL will do everything possible to ensure that any of the Clients or Property’s supplies, rentals and equipment are cared for and maintained in good working order and without damage., but accepts no liability for any failure or damage caused by reasonable usage during any Function, save for the neglect and/or wilful conduct of CDL, its employees, or its agents.
17. Any damages accepted by CDL will be replaced at the estimated cost of replacement not replacement at new value.
18. Where an event over runs and CDL staff have to leave then CDL accepts no liability for damages or losses caused after CDL depart.
19. The Client will indemnify CDL against any Claim made by the Property for any non compliance of actions by the Client in not putting back furniture where it is the Clients responsibility.
20. Where Cloakroom facilities are provided and agreed CDL accepts no responsibility for guest’s possessions, which are left at the owner’s own risk.
21. This clause 11 shall survive termination of the Contract.
12. Health and safety at work
1. CDL shall observe the provisions of the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, Food Safety Act 1990 and all other regulations, approved Codes of Practice and amendments thereto pertaining to the health and safety of employees and members of the public and shall ensure that its agents, employees and sub-Suppliers are competent to carry out their respective tasks with due regard to the Supplier's obligations under these Acts and other instruments.
2. In order to maintain and ensure compliance with food safety hygiene and health and safety legislation and regulations the Client shall not itself provide or engage any person, organisation or firm other than CDL to provide catering services at the Premises on the Function unless agreed in writing by the Client and CDL prior to the Function.
3. Each Party agrees to notify the other Party of any health and safety hazards which may arise in connection with the performance of the Services.
13. Confidentiality
1. “Confidential information” shall mean all information disclosed by one Party to the other, orally in writing or in electronic form relating to any Agreement that is not in the public domain (except where disclosure is in the public domain due to a breach of this clause). It shall also include information, documents, drawings, reports or data the Supplier may acquire or generate under or in connection with this Agreement.
2. Each Party shall:
1. treat all Confidential Information as secret and confidential and safeguard it accordingly;
2. not disclose any Confidential Information to any third party without the prior written consent of the other Party, except to such extent as may be necessary for the performance of any Agreement; and,
3. not use any Confidential Information otherwise than for the purposes of this Agreement.
3. The provisions of clause 13.2 and 13.3 shall not apply to any information which is:-
1. or becomes public knowledge (otherwise than by breach of this clause 13); or
2. in the possession of the Party concerned, without restriction as to its disclosure, before receiving it from the disclosing Party; or
3. received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or
4. independently developed without access to the Confidential Information.
4. Nothing in this clause 13 shall prevent either Party :-
1. disclosing any Confidential Information which is required to be disclosed by an order of court or other tribunal or required to be disclosed in accordance with any law, statute, proclamation, by-law, directive, decision, regulation, rule, order, notice, rule of court, delegated or subordinate legislation.
14. Intellectual Property Rights
1. The Client hereby grants to CDL a perpetual non-exclusive royalty-free license to use any deliverables or material created by the performance of any Agreement in which, but for this clause 14, the Client would own the IPR (including but not limited to recipes, data, drawings, design, working papers and the contents of any report). The Client agrees that CDL may without hindrance publish, alter, release, license or otherwise exploit and deal with such material as it thinks fit, via any medium.
2. Unless otherwise set out the Client agrees to CDL’s use of media taken of the Function for marketing purposes. This will include the use of professional photographs taken at the event for marketing purposes.
3. The Client agrees to indemnify CDL, including reasonable legal costs, of any action by a third party of a claim for image rights unless set out in writing (for the purposes of this clause 14.3 in writing does not include email) where the Client has agreed CDL can operate as set out in sub clause 14.2.
15. Data Protection
1. CDL agree to abide by the provisions of the General Data Protection Regulation (GDPR) 2018 for any works they enact under any Agreement.
2. CDL will not share the Client’s personal data with any third parties for any reasons without the prior consent of the Client.
3. Such data will only be collected, processed and held in accordance with CDL’s rights and obligations arising under the provisions and principles of the General Data Protection Regulation (GDPR) 2018.
16. Force majeure
1. Neither Party to this Agreement shall be liable to the other nor held in breach of any Agreement if either Party is prevented, hindered or delayed in the performance of its obligations under any Agreement by any act of God, war, riot, civil commotion, explosion, fire, radiation, accident, terrorism, government action, interruption in the supply of power, labour dispute other than a dispute concerning the Supplier's employees or the employees of its sub-Suppliers, epidemic or other circumstances beyond the control of the Parties which prevents a Party from, or hinders or delays a Party in performing its obligations under this Agreement (and which the application of due diligence and foresight could not have prevented).
17. Termination
1. Either Party may immediately terminate any Agreement by giving written notice to the other Party if:
1. If either Party commits a fundamental breach of its obligations without remedy under any Agreement;
2. any sum owing to that Party by the other Party under any of the provisions of any Agreement is not paid within 7 Business Days of the due date for payment;
3. the other Party commits any other breach of any of the provisions of any Agreement and, if the breach is capable of remedy, fails to remedy it within 7 Business Days after being given written notice giving full particulars of the breach and requiring it to be remedied;
4. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of that other Party;
5. the other Party makes any voluntary arrangement with its creditors or, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
6. the other Party has a provisional liquidator, receiver, or manager of its business or undertaking duly appointed;
7. the other Party has possession taken by or on behalf of the holder of any debentures secured by a floating charge, of any property comprised in, or subject to, the floating charge;
8. the other Party is in circumstances that entitle the Court or a creditor to appoint, or have appointed, a receiver, a manager, or administrative receiver or which entitle the Court to make a winding-up order;
9. if there is a change of control in the shareholding;
10. where a Party or any of its employees or sub-suppliers becomes embroiled in matters attracting significant negative publicity liable to reflect adversely on the other Party, including but not limited to any occasion on which any of these persons is convicted of an arrestable offence;
11. where the Party is an individual if he shall die or be judged incapable of managing his affairs within the meaning of Part VII of the Mental Health Act 1983.
that other Party ceases, or threatens to cease, to carry on business; or
12. The rights to terminate any Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
18. Effects of Termination
Upon the termination of any Agreement for any reason:
1. any sum owing by either Party to the other under any of the provisions of any Agreement shall become immediately due and payable;
2. all Clauses which, either expressly or by their nature, relate to the period after the expiry or termination of any Agreement shall remain in full force and effect;
3. termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of any Agreement which exist at or before the date of termination;
4. subject as provided in this Clause 18 and except in respect of any accrued rights neither Party shall be under any further obligation to the other; and
5. each Party shall (except to the extent referred to in Clause 17) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.
19. Dispute resolution
1. In the event of a disagreement or dispute between the Parties in relation to the Services or in relation to the interpretation of any Agreement, the Parties shall, in the first instance endeavor to resolve the disagreement or dispute themselves (or through their representatives).
2. In the event of a failure to reach an agreement in accordance with clause 19.1 within a reasonable time then the disagreement or dispute shall be referred to any mediation or conciliation procedure by reference to a third independent party agreed by the Parties. Any such mediation or conciliation will not be binding on the Parties.
3. If such dispute or difference is not resolved within twenty-one days of the dispute being referred to mediation or conciliation under clause 19.2 then such dispute or difference shall if so agreed by the Parties be referred to an arbitrator agreed between the Parties or the lowest cost binding arbitration, or, in default of such agreement to be nominated by the President of the Chartered Institute of Arbitrators and such a referral to arbitration shall be deemed to be a referral in accordance with the Arbitration Act 1996 and any statutory modification or re-enactment thereof for the time being in force.
4. The costs of mediation, conciliation and/or the appointment of the arbitrator shall be shared equally between the Parties and the arbitrator shall determine which Party shall pay any costs subsequently incurred.
20. Notices
All notices served under any Agreement shall be in writing (for this clause 20 in writing is not classed as email) and shall be delivered by hand or sent by pre-paid first class recorded delivery post, in the case of any Agreement to the addresses agreed and exchanges at point of Order (which addresses may themselves be amended by notice in accordance with this clause). Notices served by hand will be deemed served the day after service. Notices sent by post shall be deemed to have been received by the addressee 2 days after the day on which they were posted (excluding weekends and public holidays).
21. Waiver
Failure by either Party at any time to enforce the provisions of these Terms or to require performance by either Party of any of the provisions of these Terms shall not be construed as a waiver of or as creating an estoppel in connection with any such provision and shall not affect the validity of these Terms or any part thereof or the right of either Party to enforce any provision in accordance with its terms.
22. Illegality
If any provision or term of any Agreement or any part of it shall become unenforceable for any reason whatsoever, including but without limitation by reason of the provisions of any legislation, Regulation, Order, Direction of the Secretary of State or other provision having the force of law or by reason of any decision of any Court of competent jurisdiction, the validity and enforceability of the remainder of any Agreement shall not be affected thereby and shall remain in full force and effect. Where any such provision or decision substantially affects or alters the ability of either of the Parties to comply fully with its contractual obligations the Parties shall negotiate in good faith to amend and modify the provisions and terms of any Agreement as may be necessary or desirable in the circumstances
23. Assignment and Sub-Contracting
1. Subject to sub-Clause 23.2 any Agreement shall be personal to the Parties. Neither Party may assign, or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the written consent of the other Party, such consent not to be unreasonably withheld.
2. CDL shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors. Any act or omission of such other member or sub-contractor shall, for the purposes of any Agreement, be deemed to be an act or omission of CDL.
24. Relationship of the Parties
Nothing in any Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in any Agreement.Entire Agreement
1. Any Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
2. Each Party shall acknowledge that, in entering into any Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in any Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
25. Counterparts
Any Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.
26. Severance
In the event that one or more of the provisions of any Agreement and/or of these Terms is found to be unlawful, invalid or otherwise unenforceable, that those provision(s) shall be deemed severed from the remainder of any Agreement and/or these Terms. The remainder of any Agreement and/or these Terms shall be valid and enforceable.
27. Permits / Licences
If and to the extent the Client requires any licenses, permits, registrations or other authorisations of any governmental or semi-governmental body, agency, or organization in connection with the execution of Services pursuant to any Agreement, Client undertakes to obtain such licenses, permits, registrations and other authorisations and Client undertakes to indemnify and hold CDL harmless from and against any claims of such governmental or semi-governmental bodies, agencies or organisations or of any other third parties relating to the omission of Client to obtain such licenses, permits, registrations and other authorisations.Contracts (Rights of Third Parties)
28. The Contracts
(Rights of Third Parties) Act 1999 shall not apply to any Agreement and no person who is not a party to any Agreement shall be entitled to enforce any of the provisions of any Agreement pursuant to that Act.
29. Governing law
These Terms are governed by, and are to be, construed in accordance with, English law and the Parties submit to the exclusive jurisdiction of the courts of England and Wales.