PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS WEBSITE
Tow-Trust Towbars Limited – Terms and Conditions of Sale
The customer's attention is drawn in particular to the provisions of clause 9.
1 Interpretation
1.1 Definitions.
In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Collection Location: Carlyon Industrial Estate, Carlyon Rd, Atherstone, CV9 1JE.
Collection Time: 08:00 – 16:00 Monday - Friday.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 21.6 and the Warranty.
Contract: the contract between TT and the Customer for the sale and purchase of the Goods and/or Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control will be construed accordingly.
Customer: the person or firm who purchases the Goods and/or Services from TT.
Data Protection Legislation: all data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and the retained version of the General Data Protection Regulation ((EU) 2016/679).
Deliverables: any deliverables set out in the Order.
Delivery Address: the location set out in TT’s acceptance of the Customer’s Order or such other location as the parties may agree.
Force Majeure Event: an event or circumstance beyond a party's reasonable control including (without limitation) acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on the existence of the Force Majeure Event, or companies in the same group as that party), non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on the existence of the Force Majeure Event) and interruption or failure of utility service.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and TT.
Incoterms: Incoterms 2020 (International Chamber of Commerce) or any later version of Incoterms as TT may stipulate from time to time.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s online order submitted via TT’s website, the Customer's purchase order form or emailed order submitted offline, the Customer's written acceptance of TT’s quotation, or overleaf, as the case may be.
Services: the services, including the Deliverables, supplied by TT to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services that is agreed in writing by the Customer and TT.
TT: Tow-Trust Towbars Limited (registered in England and Wales with company number 02650730).
TT Materials: any materials, equipment, documents and other property of TT.
Warranty: the warranty set out in the attached warranty schedule.
1.2 Construction. In these Conditions, the following rules apply:
(a ) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b ) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and will include any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(c ) Any phrase introduced by the terms including or include or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.
(d ) A reference to writing or written excludes faxes but includes e-mails (unless otherwise expressly provided).
2. Basis of contract
2.1 These Conditions apply in all circumstances when TT and the Customer are trading with each other in the course of their respective businesses. The Customer may place orders for Goods either online via TT’s website or offline by contacting TT. The Customer may only order Services offline, by contacting TT.
2.2 The Customer may direct any queries or concerns relating to an Order or any other matter relevant to the Contract or sales to: enquiries@tow-trust.co.uk
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions.
2.5 The Customer is responsible for ensuring that the terms of the Order and any applicable Goods Specification and/or Service Specification submitted by the Customer are complete and accurate.
2.6 The Order will only be deemed to be accepted when TT issues a written acceptance of the Order, at which point the Contract will come into existence.
2.7 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of TT which is not set out in the Contract.
2.8 Any samples, drawings, descriptive matter, or advertising produced by TT and any descriptions or illustrations contained in TT's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They will not form part of the Contract or have any contractual force.
2.9 A quotation for the Goods and/or Services given by TT will not constitute an offer. All quotations are subject to availability of and cost to TT of Goods and/or the provision of Services and may be withdrawn or amended by TT at any time and are therefore non-binding.
2.10 Any advice or recommendations given by TT or its employees or agents relating to the suitability of the Goods is supplied in good faith but the Customer must satisfy itself that the Goods are suitable for the intended purpose.
2.11 All of these Conditions will apply to the supply of both Goods and Services except where application to one or the other is specified.
2.12 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.13 All sizes, weights, capacities, dimensions and measurements indicated on TT’s website and in its brochures and other sales literature are for illustrative purposes and are therefore non-binding.
2.14 If TT is unable to supply the Customer with the Goods ordered for any reason, TT will inform the Customer of this and unless the Customer agrees that the Order may be placed on back-order, TT will not process the Order and, unless the Order is to be placed on back-order, if the Customer has already paid for the Goods, TT will refund the Customer the full amount including any delivery costs charged as soon as possible.
3. Specifications
3.1 The parties will use reasonable endeavours to agree the Goods Specification and, if applicable, the Service Specification.
3.2 If the parties cannot agree on the Goods Specification or the Service Specification, without prejudice to any other rights or remedies TT may have, TT may cancel the Customer’s Order without liability. The Customer will pay TT on a time and materials basis fair and reasonable compensation for any work in progress on or in relation to the Goods/Services at the time of termination and management time incurred by TT in relation to that Order prior to the time of termination including (without limitation) the cost of any Goods already purchased or commissioned for manufacture, but whilst such compensation will not include loss of profits in relation anything which TT would have done under the Contract had this not been terminated, it is agreed that TT will be entitled to its usual margin on all work it has carried out up to termination.
4. Goods
4.1 The Goods are described in TT's catalogue as modified by any applicable Goods Specification or, in relation to online orders, in the description(s) of the Goods on TT’s website.
4.2 Images of the Goods (and any Goods’ packaging) on TT’s website or in any of TT’s sales brochures or other literature are for illustrative purposes only.
4.3 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer will indemnify TT against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by TT in connection with any claim arising out of or in connection with:
(a ) made against TT for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with TT's use of the Goods Specification;
(b ) personal injury, loss or damage to property arising from the use of the Goods except to the extent that such injury, loss or damage is solely attributable to the negligence or default of TT or TT’s employees or agents.
4.4 Clause 4.3 will survive termination of the Contract.
4.5 If required by any applicable statute, regulation or law, TT reserves the right to amend the Goods Specification for the purposes of achieving compliance or to cease working on an Order if required. In these circumstances, to the extent legally possible, TT will raise any such issue promptly with the Customer and the parties will work together using reasonable endeavours to agree a solution, including an amended Goods Specification if necessary. TT reserves the right to increase the price of the Goods if any such solution or amendment to the Goods Specification results in increased costs to TT.
4.6 The Customer acknowledges that since TT does not in all cases manufacture the Goods, it is reliant upon its suppliers and if a there is a delay with the supplier’s manufacture and supply then that will have the resultant effect of delaying TT’s supply of Goods and/or Services to the Customer.
5. Delivery and Collection
5.1 If TT’s acceptance of the Customer’s Order confirms that Incoterms will apply to the Order, the relevant stated Incoterm will apply. In that case, if there is any conflict between the Contract and Incoterms, Incoterms will prevail to the extent required to resolve the conflict.
5.2 TT reserves the right at any time to refuse to make delivery of the Goods if in its sole opinion the storage and offloading facilities proposed by the Customer are unsafe or inadequate for the Goods. All reasonable costs incurred by TT in attempting to make delivery in these circumstances will be for the account of the Customer. Delivery of the Goods by TT or TT’s agent for such delivery will in no way constitute a commitment or representation by TT as to the suitability of the Customer’s storage or offloading facilities.
5.3 It is the Customer’s responsibility to check that the Goods delivered by TT/made available for collection match the Goods ordered before putting such Goods to use. TT will not be responsible for any liabilities, costs, expenses, damages or losses incurred by the Customer if the Customer does not check the Goods in this way. In the event of an inconsistency between the Goods (as ordered) and the goods actually delivered/collected (e.g. the wrong products are delivered or made available for collection), the Customer will notify TT immediately on discovery and TT will contact the Customer to arrange re-delivery/collection of the Goods as soon as reasonably practicable following notification of the inconsistency. The incorrect goods will be collected by or returned to TT (at TT’s option) at TT’s cost and the Customer will co-operate with TT in this respect.
5.4 It is the Customer’s responsibility to check that the Goods delivered by TT/made available for collection:
(a ) meet all applicable required standards including (without limitation) the Customer’s requisite quality standards; and
(b ) are fit for purpose,
before putting such Goods to use. TT will not be responsible for any liabilities, costs, expenses, damages or losses incurred by the Customer if the Customer does not check the Goods in this way.
5.5 If TT has agreed to deliver the Goods:
(a ) TT will deliver the Goods to the Delivery Address. Deliveries will take place Monday – Friday between the hours of 08:00 – 18:00 unless otherwise agreed between the parties in writing and an authorised representative of the Customer must be present at the time of delivery;
(b ) the risk in the Goods will pass to the Customer on completion of delivery; and
(c ) delivery is completed on the completion of the unloading of the Goods at the Delivery Address.
5.6 If TT has agreed that the Customer may collect the Goods:
(a ) the Customer will collect the Goods from the Collection Location within 5 Business Days of TT notifying the Customer that the Goods are ready for collection at a date and time to be agreed between the parties within the Collection Time;
(b ) the risk in the Goods will pass to the Customer on collection; and
(c ) collection is completed on the completion of loading of the Goods at the Collection Location.
5.7 A delivery note will be provided to the Customer electronically on the day before scheduled delivery. Hard copy collection notes will be provided on collection.
5.8 All orders placed through TT’s website before 15:30 will be despatched that day on the requested delivery service. Orders received after 15:30 will be despatched the next working day.
5.9 Any dates quoted or provided (or shown on TT’s website during the check-out process) for delivery/collection of Goods are approximate only, and the time of delivery/collection is not of the essence. TT will not be liable for any delay in delivery of the Goods or making the Goods available for collection that is caused by a Force Majeure Event or the Customer's failure to provide TT with adequate delivery instructions or any other instructions or information that are relevant to the supply of the Goods.
5.10 The Customer will not be liable for the price of and TT will refund any amount paid in respect of Goods, which TT fails to deliver or make available for collection. Subject only to clause 15 but notwithstanding any other provision of these Conditions or the Contract, TT’s further liability in respect of such failure will be limited to the lesser of the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality at the cheapest price available and 10% of the price of the Goods in respect of which such failure occurred. However, TT will have no liability for any failure to deliver Goods or make the Goods available for collection to the extent that such failure is caused by a Force Majeure Event or any breach or failure by the Customer.
5.11 If the Customer fails to take or accept delivery of the Goods within 5 Business Days of TT notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or TT’s failure to comply with its obligations under the Contract:
(a ) delivery/collection of the Goods will be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which TT notified the Customer that the Goods were ready for delivery/collection; and
(b ) TT will store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.12 If 10 Business Days after the day on which TT notified the Customer that the Goods were ready for delivery or collection, the Customer has not taken or accepted delivery of them, TT may resell or otherwise dispose of part or all of the Goods.
5.13 TT may deliver the Goods or make the Goods available for collection by instalments, which will be invoiced and paid for separately. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
5.14 All deliveries and collections must be signed for as confirmation of receipt and acknowledgement that the correct number of items have been delivered/collected.
5.15 Any non-delivery must be notified to TT within 3 Business Days of the estimated delivery date notified to the Customer.
5.16 Any instances of incorrect items being delivered or made available for collection must be notified to TT within 3 Business Days of delivery or collection (as the case may be). If requested to do so, the Customer will provide additional information including (without limitation) photographs, invoice numbers and part numbers. The Customer must retain all original packaging.
5.17 If after the Customer raises a notification to TT pursuant to clause 5.15 or 5.16, TT provides replacement Goods or issues a refund and the original Goods subsequently arrive, the Customer must notify TT immediately and either refuse delivery of the original Goods or accept delivery and return the original Goods to TT immediately.
5.18 The delivery/collection or carrier’s consignment note (as the case may be) whether presented in hard copy form or electronically must be noted if there are shortages, defects apparent on visual inspection or if the Goods and/or the packaging of the Goods were damaged and/or defective on delivery/collection. This is a condition of the Warranty.
6. Overseas Delivery
TT may at its discretion agree to deliver Goods to addresses outside of the United Kingdom. However, there are restrictions on some Goods for certain international delivery destinations and it is the Customer’s responsibility to ascertain information about the existence and applicability of such restrictions. If the Customer orders Goods for delivery outside of the United Kingdom, that order may be subject to import duties and taxes which are applied when the delivery reaches that destination. TT has no control over these charges and cannot predict their amount. The Customer will be responsible for payment of any such import duties and taxes. The Customer must comply with all applicable laws and regulations of the country for which the Goods are destined. TT will not be liable or responsible if the Customer breaks any such law.
7. Quality and Warranty
7.1 The provisions relating to quality and warranty in respect of the Goods as set out in the attached Warranty will apply.
7.2 Except as provided in the Warranty, TT will have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in the Warranty.
7.3 Except as set out in these Conditions and the Warranty, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
7.4 These Conditions will apply to any repaired or replacement Goods supplied by TT (save that the warranty period referred to in the Warranty (if applicable) will be reduced to equal such warranty period as was remaining, at the date that the Goods were repaired or replaced, in respect of the original Goods purchased by the Customer).
7.5 The Customer acknowledges that TT is not in all cases the manufacturer of all of the Goods it supplies to customers. TT will use all reasonable endeavours to pass on to the Customer the benefit of any applicable manufacturer warranty in connection with the Goods.
8. Title
8.1 Title to the Goods will not pass to the Customer until the earlier of:
(a ) TT receiving payment in full (in cash or cleared funds) for the Goods and any other goods that TT has supplied to the Customer in respect of which payment has become due, in which case title to the Goods will pass at the time of payment of all such sums; and
(b ) the Customer reselling the Goods, in which case title to the Goods will pass to the Customer at the time specified in clause 8.3.
8.2 Until title to the Goods has passed to the Customer, the Customer will:
(a ) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as TT’s property;
(b ) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c ) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on TT’s behalf from the date of delivery;
(d ) notify TT immediately if it becomes subject to any of the events listed in clause 13.1(b) - 13.1(d); and
(e ) give TT such information as TT may reasonably require from time to time relating to the Goods and the ongoing financial position of the Customer.
8.3 Subject to clause 8.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before TT receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a ) it does so as principal and not as TT’s agent; and
(b ) title to the Goods will pass from TT to the Customer immediately before the time at which resale by the Customer occurs.
8.4 At any time before title to the Goods passes to the Customer, TT may:
(a ) by notice in writing, terminate the Customer's right under clause 8.3 to resell the Goods or use them in the ordinary course of its business; and
(b ) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
9. Performance of Services
9.1 TT will perform the Services to the Customer in accordance with the Service Specification in all material respects.
9.2 TT will use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification or otherwise agreed in writing, but any such dates will be estimates only and time will not be of the essence for the performance of the Services.
9.3 If required by any applicable statute, regulation or law, TT reserves the right to amend the Service Specification to the extent required to achieve compliance or to cease providing Services. In these circumstances, to the extent legally possible, TT will raise any such issue promptly with the Customer and the parties will work together using reasonable endeavours to agree a solution, including an amended Service Specification if necessary. TT reserves the right to increase the price of the Services if any such solution or amendment to the Service Specification results in increased costs to TT.
9.4 TT warrants to the Customer that the Services will be provided using reasonable care and skill.
10. Customer’s Obligations
10.1 The Customer will:
(a ) ensure that the terms of the Order, the Goods Specification and the Service Specification are complete and accurate;
(b ) check any Order submitted online carefully before the same is submitted to ensure that it is complete and accurate;
(c ) co-operate with TT in all matters relating to the Services;
(d ) provide TT, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by TT to provide the Services;
(e ) provide TT with such information and materials as TT may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(f ) if applicable, prepare the Customer's premises for the supply of the Services;
(g ) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(h ) comply with all applicable laws, including health and safety laws;
(i ) keep all TT Materials at the Customer's premises in safe custody at its own risk, maintain TT Materials in good condition until returned to TT, and not dispose of or use TT Materials other than in accordance with TT’s written instructions or authorisation; and
(j ) comply with any additional obligations as set out in the Service Specification and the Goods Specification.
11. Delays
11.1 If TT’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a ) without limiting or affecting any other right or remedy available to it, TT will have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays TT’s performance of any of its obligations;
(b ) TT will not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from TT’s failure or delay to perform any of its obligations as set out in this clause 11; and
(c ) the Customer will reimburse TT on written demand for any costs or losses sustained or incurred by TT arising directly or indirectly from the Customer Default.
12. Price and Payment
12.1 If the Customer has ordered Services offline, the price for Services will be the price set out in TT’s written acceptance of the Order.
12.2 If the Customer has ordered Goods offline, the price for Goods will be the price set out in TT’s written acceptance of the Order and will be exclusive of all costs and charges of packaging, insurance and transport of the Goods, which will be invoiced to the Customer in addition unless otherwise stated. The additional costs in respect of costs and charges of packaging, insurance and transport of the Goods may be invoiced separately to the price for Goods.
12.3 If the Customer has ordered Goods online, the price for the Goods will be as quoted on TT’s website at the time the Customer submits its Order and will be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which will be charged to the Customer in addition. Such charges will be as advised to the Customer during the check-out process, before the Customer confirms its Order.
12.4 A large number of Goods are sold through TT’s website. It is always possible that, despite TT’s reasonable efforts, some of the Goods on TT’s website may be incorrectly priced. If TT discovers an error in the price of the Goods the Customer has ordered TT will contact the Customer and give the Customer the option of continuing to purchase the Goods at the correct price or cancelling its Order. TT will not process the Order until the Customer’s instructions have been received. If TT is unable to contact the Customer using the contact details provided by the Customer during the order process, TT will treat the Order as cancelled and notify the Customer. If TT mistakenly accepts and processes an Order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by the Customer as a mispricing, TT may cancel supply of the Goods and refund the Customer any sums already paid.
12.5 In relation to Orders placed offline, TT may, by giving notice to the Customer at any time up to 2 Business Days before delivery or collection (as the case may be), increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services that is due to:
(a ) any factor beyond TT's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b ) any request by the Customer to change the delivery date(s) or time, quantities or types of Goods or Services ordered, or the Goods Specification or Service Specification; or
(c ) any delay caused by any instructions of the Customer or failure of the Customer to give TT adequate or accurate information or instructions in respect of the Goods or Services.
12.6 For Orders for Goods placed online, the Goods may be paid for by debit card or credit card. Payment for all Goods ordered online and all applicable charges is in advance.
12.7 In respect of Goods ordered offline, TT will invoice the Customer on or at any time after completion of delivery/collection.
12.8 In respect of Services, TT will invoice the Customer on completion of the Services, unless otherwise agreed.
12.9 The price of the Goods and Services is exclusive of amounts in respect of value added tax (VAT). The Customer will, on receipt of a valid VAT invoice from TT, pay to TT such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
12.10 The price of the Goods and Services is exclusive of all applicable consular charges, stamp duties, export or import duties, purchase tax or similar fiscal demands (UK or otherwise), bank charges and interest charges.
12.11 In relation to offline orders, unless any payment terms are specified on the sales order acknowledgement, the Customer will pay invoices in full and in cleared funds on or before the last Business Day of the calendar month following of the date of the invoice or in accordance with any credit terms agreed by TT and confirmed in writing to the Customer. Payment will be made to the bank account nominated in writing by TT.
12.12 Time of payment is of the essence of the Contract.
12.13 If the Customer fails to make any payment due to TT under the Contract by the due date for payment (due date):
(a ) then the Customer will pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc's base rate from time to time. Such interest will accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer will pay the interest together with the overdue amount;
(b ) TT may withdraw any credit facility provided to the Customer;
(c ) TT may withdraw the Customer’s access to TT’s online trade sales portal.
12.14 The Customer will pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer will not be entitled to assert any credit, set-off or counterclaim against TT in order to justify withholding payment of any such amount in whole or in part. TT may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by TT to the Customer.
12.15 If at any time TT is not satisfied as to the creditworthiness of the Customer it may give written notice to the Customer that no further credit will be allowed to the Customer in which case no further goods will be delivered to (or made available for collect by) the Customer other than where the Goods have been paid for upfront.
13. Termination
13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a ) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
(b ) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c ) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d ) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
13.2 Without affecting any other right or remedy available to it, TT may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a ) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b ) there is a change of Control of the Customer.
13.3 Without affecting any other right or remedy available to it, TT may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and TT if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.1(b) - 13.1(d), or TT reasonably believes that the Customer is about to become subject to any of them.
14. Consequences of Termination
14.1 On termination of the Contract:
(a ) the Customer will immediately pay to TT all of TT’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, TT will submit an invoice, which will be payable by the Customer immediately on receipt;
(b ) the Customer will immediately pay for any Goods ordered by the Customer;
(c ) the Customer will return all TT Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then TT may enter the Customer's premises and take possession of them. Until they have been returned, the Customer will be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
14.2 Termination or expiry of the Contract will not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry will continue in full force and effect.
15. Limitation of Liability
15.1 The restrictions on liability in this clause 15 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.2 Nothing in these Conditions will limit or exclude TT's liability for:
(a ) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b ) fraud or fraudulent misrepresentation;
(c ) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d ) defective products under the Consumer Protection Act 1987; or
(e ) any matter in respect of which it would be unlawful for TT to exclude or restrict liability.
15.3 Subject to clause 15.2:
(a ) TT will under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b ) TT's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the price of the Goods and/or Services ordered.
15.4 TT has given commitments as to compliance of the Goods and Services with relevant specifications in the Warranty and clause 9. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
15.5 This clause 15 will survive termination of the Contract.
16. Data Protection
Each party will, at its own expense, ensure that it complies with and assists the other party to comply with all requirements of the Data Protection Legislation. Each party will ensure that it has all necessary consents and notices in place to enable the lawful transfer of personal data to the other for the purposes of each party fulfilling its obligations under the Contract. Neither party will use or disclose personal data provided to it by the other in connection with the Contract other than for the purpose of fulfilling the Contract.
17. Intellectual Property Rights
17.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) will be owned by TT.
17.2 TT grants to the Customer, or will procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to copy and modify the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business. The Customer will not sub-license, assign or otherwise transfer the rights granted by this clause 17.2.
17.3 The Customer grants TT a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to TT for the term of the Contract for the purpose of providing the Services to the Customer.
17.4 The Customer will not receive any Intellectual Property Rights in the Goods by virtue of the Contract save for a non-exclusive, non-transferable, royalty-free licence to use the Goods for the purposes of its business.
17.5 The Customer hereby confirms that they will not use and/or copy any content and/or images which are contained and/or displayed on TT’s website (www.tow-trust.co.uk) and/or in any marketing or other documentation of TT, for any purpose, without TT’s prior written consent.
17.6 By entering into the Contract, the Customer irrevocably agrees and confirms that any designs, drawings and/or specifications (including, if applicable, the Goods Specification or Services Specification) (Designs) created or contributed to by TT in respect of the Goods belong to TT and all intellectual property rights in respect of the Designs and/or Goods (including, without limitation, copyright and unregistered design rights) and the right to manufacture the Goods or utilise the Designs in anyway belong to TT. The Customer only has the right to use the Goods manufactured and supplied by TT for their reasonably intended purpose (and, for the avoidance of any doubt, the Customer does not have the right to, and hereby agrees not to (and to procure that no third party will), copy the Designs and/or the Goods and/or to produce articles based upon the Designs and/or to reverse engineer the Goods). It is hereby further agreed that if the Customer breaches the terms of this clause 17.6, TT will be entitled, without limitation, to seek an account of any profits made by the Customer and/or damages as a result of such breach (such rights will not limit any other claims TT may have).
18. Dispute Resolution
18.1 An Expert is a person appointed in accordance with this clause 18.1 to resolve any disagreement between the parties as to whether the Goods comply with the warranties in the Warranty. Where under the Contract a party wishes to refer a matter to an Expert, the parties will first agree on the appointment of an independent Expert and agree with the Expert the terms of his appointment. If the parties are unable to agree on an Expert or the terms of the Expert's appointment within 7 days of either party serving details of a suggested expert on the other, either party will then be entitled to request the Centre for Effective Dispute Resolution (CEDR) to appoint a suitable and appropriate Expert with the required expertise. The Expert is required to prepare a written decision including reasons and give notice of the decision to the parties within a maximum of 3 months of the matter being referred to the Expert. If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required, then either party may apply to CEDR to discharge the Expert and to appoint a replacement Expert with the required expertise and this clause 18.1 will apply to the new Expert as if they were the first Expert appointed. Each party will with reasonable promptness supply each other with all information and give each other access to all documents, personnel and things as the other party may reasonably require to make submissions to the Expert. The Expert will act as an expert and not as an arbitrator. The Expert will determine the matters referred to the Expert under the Contract. The Expert's written decision on the matters referred to the Expert will be final and binding on the parties in the absence of manifest error or fraud. All matters concerning the process and result of the determination by the Expert will be kept confidential among the parties and the Expert. Each party will act reasonably and co-operate to give effect to the provisions of this clause 18.1 and otherwise do nothing to hinder or prevent the Expert from reaching their determination. The Expert and CEDR will have no liability to the parties for any act or omission in relation to this appointment, save in the case of bad faith.
18.2 If any other dispute arises in connection with the Contract or these Conditions, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party the dispute, referring the dispute to mediation. If there is any point on the logistical arrangements of the mediation, other than nomination of the mediator, upon which the parties cannot agree within 14 days from the date of the ADR Notice, where appropriate, in conjunction with the mediator, CEDR will be requested to decide that point for the parties having consulted with them. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR notice.
18.3 For the avoidance of doubt, clause 18 will not prevent TT from immediately initiating court proceedings to seek any interim relief (including injunctive relief) or take advantage of any applicable time limitation.
19. Force Majeure
TT will not be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances TT will be entitled to a reasonable extension of the time for performing such obligations.
20. Confidentiality
Each party undertakes that it will not disclose to any person any confidential information concerning the business, affairs, Designs, customers, clients or suppliers or manufacturing process information, any original works or design rights or copyright (whether or not registered) of the other, except as permitted by this clause 20. Each party may disclose the other party's confidential information (i) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 20. No party will use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
21. General
21.1 Assignment and subcontracting. TT may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of TT.
21.2 Notices. Any formal notice or other formal communication given to a party under or in connection with the Contract will be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause 21.2, and will be delivered personally, sent by pre-paid first class post, recorded delivery or commercial courier. Such formal notice or communication will be deemed to have been received: if delivered personally, when left at the address referred to in this clause 21.2; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed. The provisions of this clause 21.2 will not apply to the service of any proceedings or other documents in any legal action. A notice will not be valid if sent only by email.
21.3 Severance. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract will not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision will apply with the minimum modification necessary to make it legal, valid and enforceable.
21.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and will not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that or any other right or remedy.
21.5 Third party rights. A person who is not a party to the Contract will not have any rights under or in connection with it.
21.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, will only be binding when agreed in writing and signed by TT. Notwithstanding the first part of this condition, having first notified the Customer in writing, TT reserves the right to correct any clerical errors made by its employees and/or directors at any time in respect of the Order and/or the Contract.
21.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), will be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.