Terms & Conditions

1. APPLICATION OF CONDITIONS

1.1 The Supplier shall provide and the Customer shall purchase the Services in accordance with the agreed quotation and associated schedules (if applicable) which shall be subject to these Conditions.

1.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.

1.3 Use of any of the Supplier’s Services by the Customer shall be deemed acceptance of these Terms and Conditions.

2. DEFINITIONS AND INTERPRETATION

2.1 In these Conditions, unless the context otherwise requires, the following expressions shall have the following meanings:-

“Business Day” means any day other than a Saturday, Sunday or bank holiday;

“Carrier” means a third-party provider commissioned by the Supplier to carry and deliver the Goods;

“Commencement Date” means the commencement date for the Contract as set out in the quotation and associated schedules;

“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Supplier;

“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 this 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);

“Contract” means the contract for the provision of the Services under these Conditions;

“Customer” means the person who accepts a quotation or offer of the Supplier for the sale and provision of the Services, or whose order for the Services is accepted by the Supplier;

“Delivery Date” means the date or dates on which the Services are to be delivered as stipulated in the Customer’s order and accepted by the Supplier;

“End User” means the Customer’s end consumer or a person whose Personal Data the Customer supplies to the Supplier;

“Goods” means the Customer’s range of products (including any instalment of the products or any parts for them) in respect of which the Supplier is to provide the Services to the Customer under the Contract;

“Intellectual Property Rights” means all patents and patent applications, registered or unregistered design rights, copyright, rights in databases, registered trade marks or applications for registration, unregistered trade mark rights, domain names, know how or similar, such rights subsisting or arising anywhere in the world;

“Month” means a calendar month;

“Packaging” means the materials as set out in the quotation and schedules (if applicable) to be supplied by the Supplier as part of the Services;

“Prohibited Goods” means dangerous, hazardous, flammable or explosive goods, materials or substances, firearms (including imitation firearms or firearm components), bladed products or articles, ammunition, clinical and medical waste, controlled drugs and narcotics, corrosive substances, matches or lighters containing flammable liquid or gas, and poisonous or toxic liquids, solids or gases;

“Services” means the Services to be provided to the Customer as set out in the quotation and schedules (if applicable);

“Supplier” means The Pack Smart Group Limited, a company registered in England and Wales with registration number 12590077 whose registered office is at Unit 5 Blue Ribbon Park, The Stampings, Coventry, England, CV6 5RE; and the following group companies: –

• Music Smart Limited, a company registered in England and Wales with registration number 12597741, whose registered office is at Unit 5 Blue Ribbon Park, The Stampings, Coventry, England, CV6 5RE;
• Drinks Smart Limited, a company registered in England and Wales with registration number 12598105, whose registered office is at Unit 5 Blue Ribbon Park, The Stampings, Coventry, England, CV6 5RE;
• Sports Smart Limited, a company registered in England and Wales with registration number 12598087, whose registered office is at Unit 5 Blue Ribbon Park, The Stampings, Coventry, England, CV6 5RE; and
• Pack Smart UK Limited, a company registered in England and Wales with registration number 13353303, whose registered office is at Unit 5 Blue Ribbon Park, The Stampings, Coventry, England, CV6 5RE.

2.2 Unless the context otherwise requires, each reference in these Conditions to:

• 2.2.1 “writing” includes a reference to any communications effected by telex, facsimile transmission, electronic mail or any comparable means;
• 2.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended, re-enacted or extended at the relevant time; and
• 2.2.3 a “Party” or the “Parties” refer to the parties to these Conditions.

2.3 The headings in these Conditions are for convenience only and shall have no effect upon the interpretation of these Conditions.

2.4 Words imparting the singular number shall include the plural and vice versa. 2.5 References to any gender shall include the other gender or genders.

3. BASIS OF SALE AND SERVICE

3.1 The Supplier’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Supplier in writing. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

3.2 Sales literature, price lists and other documents issued by the Supplier in relation to the Services are subject to alteration without notice and do not constitute offers to supply the Services which are capable of acceptance.

3.3 No contract for the sale and provision of the Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to supply the Services or has accepted an order placed by the Customer by whichever is the earlier of:-

• a) the Supplier’s written acceptance; or
• b) provision of the Services; or
• c) the Supplier’s invoice.

3.4 No order submitted by the Customer shall be deemed to be accepted by the Supplier unless and until confirmed in writing by the Supplier’s authorised representative.

3.5 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

3.6 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss, costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of such cancellation. For the avoidance of doubt, acceptance by the Supplier shall include situations where the Supplier has started processing an order.

4. THE GOODS

4.1 Supply of the Goods by the Customer to the Supplier for use in further processing, manufacture, assembly, insertion or sortation shall be on a consignment basis.

4.2 The Supplier shall acknowledge receipt of the Goods.

4.3 The Customer shall be responsible for ensuring that the Goods, in respect of which the Supplier is to provide the Services (as confirmed in the quotation and schedules (if applicable)), are delivered and accepted by the Supplier on or before the Delivery Dates identified in the quotation and schedules (if applicable).

4.4 The Supplier shall not be liable to the Customer or be deemed to be in breach of these Conditions by reason of non-delivery of the Services on the specified Delivery Dates where the Customer failed to comply with its obligations under clause 4.3 of these Conditions.

4.5 Where the Goods consist of any exclusive or limited editions or signed or other unique items, offers, promotional goods or specially packaged items, the Customer shall be responsible for ensuring that such Goods will be delivered to the Supplier in sufficient quantities and in accordance with the Delivery Dates identified in the quotation and schedules (if applicable).

4.6 Any Goods supplied to the Supplier must be accompanied by appropriate documentation including listing contents where items are supplied in outer packaging. The Supplier reserves the right to open any item supplied in such manner to establish the nature of the Goods and ensure that the Goods are legal and, where appropriate, covered by the Supplier’s insurance. The Supplier shall then reseal original packaging.

4.7 The Customer shall obtain all necessary licences and consents and comply with all relevant legislation in relation to the Goods before the date on which the Services are to start.

5. INSURANCE

5.1 The Parties acknowledge and accept that the Goods are stored, processed and dispatched by the Supplier at the risk of the Customer and the Supplier shall not be liable for any loss or damage to the Goods however caused.

5.2 The Customer shall enter into and maintain an all-risks insurance policy to the full value of the Goods, including coverage for theft and burglary, that are owned by the Customer and stored by the Supplier.

5.3 The Supplier may, at the written request of the Customer, arrange an all-risks insurance policy in respect of the Goods at the cost of the Customer.

5.4 Where the Customer wants the Supplier to arrange insurance of the Goods (as set out in clause 5.3), the Customer must specify a total estimated replacement value of the Goods.

5.5 The Supplier shall not be liable to make any payments to the Customer where the full value of the Goods cannot be recovered by the Customer for any reason.

6. THE SERVICES

6.1 With effect from the Commencement Date the Supplier shall, in consideration of the fees being paid in accordance with Clause 10 and any other payment terms as may be set out in the quotation and any applicable schedules, provide the Services expressly identified in the quotation and schedules (if applicable) or otherwise agreed with the Customer.

6.2 The Supplier will use reasonable care and skill to perform the Services identified in the quotation and schedules (if applicable) or otherwise agreed.

6.3 The Supplier shall use its reasonable endeavours to complete its obligations under the Contract, but time will not be of the essence in the performance of such obligations.

7. COMMENCEMENT AND DURATION

7.1 The Services supplied under these Terms and Conditions shall be provided by the Supplier to the Customer from the date of acceptance by the Customer of the Supplier’s quotation or the Supplier’s acceptance of the Customer’s order.

7.2 Services supplied under these Terms and Conditions shall continue to be supplied for the agreed term unless terminated in accordance with clause 18.

7.3 The parties may agree that upon the expiry of the Term, the Services may continue to be supplied on the 30-day rolling basis unless and until terminated by giving notice to the other party of not less than 30 calendar days.

8. CHANGE OF THE SCOPE

8.1 If either party wishes to change the scope or delivery of the Services, it shall submit details of the requested change to the other in writing.

8.2 If either party requests a change to the scope or provision of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:

• a) the likely time required to implement the change;
• b) any variations to the Supplier’s charges arising from the change; and
• c) any other impact of the change on these Terms and Conditions.

8.3 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.

8.4 The Supplier may, from time to time and subject to the Customer’s prior written consent, which shall not be unreasonably withheld or delayed, change the Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, it will give the Customer at least one month’s notice of any such change. If the Customer instructs the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing the necessary variations to the Supplier’s charges and any other relevant terms of the Contract to take account of the change.

9. PRICE

9.1 The price of the Services shall be the price listed in the Supplier’s quotation current at the date of acceptance of the Customer’s order or such other price as may be agreed in writing by the Supplier and the Customer.

9.2 The price of the Services is exclusive of the Supplier’s charges for Packaging and transport which shall be charged to the Supplier separately as specified in the quotation and schedules (if applicable).

9.3 The Supplier reserves the right, by giving written notice to the Customer at any time before delivery or provision, to increase the price of the Services to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including, without limitation, any foreign exchange fluctuation currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates or specifications for the Services which are requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.

9.4 The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Services, which the Customer shall be additionally liable to pay to the Supplier.

10. PAYMENT

10.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier shall invoice the Customer for the price of the Services, Packaging and transport on or at any time after the provision of the Services (as applicable).

10.2 The Customer shall pay the price of the Services and Packaging and transport costs within the period set out in the Supplier’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Customer and the Supplier in respect of the Contract. Payment shall be made without any set-offs, withholding or deductions.

10.3 The time for the payment shall be of the essence of the Contract. If the Customer fails to make any payment under the Contract on the due date, the Supplier shall, without prejudice to any right which the Supplier may have pursuant to any statutory provision in force from time to time, have the right to charge the Customer interest on a daily basis at an annual rate equal to the aggregate of seven per cent and the base rate of Barclays Bank Plc from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.

10.4 All payments shall be made to the Supplier as indicated on the form of acceptance or invoice issued by the Supplier.

10.5 Settlement of the Supplier’s invoice is deemed acceptance of that invoice. The Customer shall check all invoices and any supporting documents before payment and raise any issues prior to settlement.

11. THE SUPPLIER’S RIGHTS AND OBLIGATIONS

11.1 The Supplier shall provide the Services with reasonable care and skill in accordance with good industry practice and its own established internal procedures.

11.2 The Supplier shall have the right to use such subcontractors, agents and Carriers as it may, at its absolute discretion, choose to appoint or commission.

12. THE CUSTOMER’S OBLIGATIONS

12.1 The Customer shall provide in a timely manner all material assistance, information and records as the Supplier may reasonably require in order to provide the Services and ensure that such information and records are complete and accurate.

12.2 The Customer shall pay to the Supplier all reasonable costs incurred by the Supplier as a result of any delay caused by any act or omission of the Customer, its agents, subcontractors or employees.

12.3 The Customer shall indemnify the Supplier in respect of all costs, charges, demands, liabilities or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Contract or arising from the contents of any of the Goods, including any loss of profit, loss of reputation, loss or damage to property, loss arising from injury to or death of any person and any costs, changes or losses resulting from any claim that any of the Goods do not belong to the Customer or that the Customer is not authorised to instruct the Supplier in relation to them.

12.4 The Customer shall pay to the Supplier all reasonable costs incurred by the Supplier where an order to purchase the Goods was placed by the End-User, processed by the Supplier and subsequently cancelled by the End-User.

12.5 The Customer shall indemnify the Supplier in respect of all claims by the End-Users and/or other third parties arising out of or in connection with the Goods being defective, not being of satisfactory quality or not being fit for their purpose.

13. DELIVERY AND PERFORMANCE

13.1 With effect from the Commencement Date the Supplier shall, in consideration of the amount(s) being paid in accordance with the quotation, provide the Services expressly identified in the schedule or otherwise agreed under this agreement.

13.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Supplier in writing.

13.3 The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any failure to perform if the failure was due to the End User’s failure or refusal to accept the delivery of the Goods.

13.4 If the End User fails or refuses to take delivery of the Goods or any part of them and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered, the Customer shall pay the Supplier all initial and additional reasonable costs and expenses (including any return charges) incurred by the Supplier as a result of its attempted performance.

14. NON-DELIVERY OF GOODS AND SERVICES

14.1 If the Supplier fails to deliver the Services on the Delivery Date other than for reasons outside the Supplier’s reasonable control or the Customer’s or its Carrier’s fault:-

• a) if the Supplier delivers the Services at any time thereafter, the Supplier shall have no liability in respect of such late delivery;
• b) if the Customer gives written notice to the Supplier within seven business days after the Delivery Date and the Supplier fails to deliver the Services within further seven Business Days after receiving such notice, the Customer may cancel the order and the Supplier’s liability shall be limited to the excess (if any) of the cost of the Customer (in the cheapest available market) of similar services to those not delivered over the price of the Services not delivered.

15. RETENTION OF TITLE IN THE GOODS, RIGHT OF RETENTION AND LIEN

15.1 All Goods of the Customer, which are stored by the Supplier, shall remain the property of the Customer.

15.2 The Supplier shall have a lien on the Goods entitling the Supplier to retain the Goods as security for all sums owed to the Supplier by the Customer. Storage charges shall accrue on any Goods detained under a lien.

15.3 The Supplier shall have a right to sell the Goods (whether privately or by public auction) in accordance with applicable law in order to recover the sums due to the Supplier in respect of the Services, charges and expenses for the account of the Goods or of the Customer as well as for all previously unsatisfied debts due to the Supplier by the Customer.

15.4 The Supplier shall not be prevented from recovering from the Customer the difference between the amount due to the Supplier and the amount realised by the exercise of the right under clause 15.3.

15.5 The Customer must continue to insure the Goods whilst under lien.

16. CUSTOMER’S DEFAULT

16.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:

• – a) cancel the order or suspend any further deliveries of the Services to the Customer; and
• b) appropriate any payment made by the Customer to such of the Services as the Supplier may think fit (notwithstanding any purported appropriation by the Customer).

16.2 This condition applies if: –

• a) the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or
• b) the Customer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
• c) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
• d) the Customer ceases, or threatens to cease, to carry on business; or
• e) the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

16.3 If clause 16.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Services have been provided but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

17. LIABILITY

17.1 The Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) which arise out of or in connection with the supply of the Services.

17.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by s12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

17.3 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by it and arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agent or employees.

17.4 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.

17.5 The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control. For the avoidance of doubt, this also includes situations where delays or failures to perform are caused by the Carrier.

17.6 If the Supplier’s performance of its obligations under these Terms and Conditions is prevented or delayed by any act or omission of the Customer, its agents, subcontractors or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.

17.7 Nothing in these Terms and Conditions excludes or limits liability of the Supplier:

• 17.7.1 for death or personal injury caused by the Supplier’s negligence;
• 17.7.2 for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
• 17.7.3 for fraud or fraudulent misrepresentation.

17.8 The Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Services under this Contract. For the avoidance of doubt, where the Supplier’s liability arises in connection with a particular order for the Goods by the End User, such liability shall be limited to the price paid for processing that order.

17.9 The Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

18. TERMINATION

18.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this agreement without liability to the other immediately on giving notice to the other if:

• a) the other party commits a material breach of any of these Terms and Conditions and (if such a breach is remediable) fails to remedy that breach within 30 working days of that party being notified in writing of the breach; or
• b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
• c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
• d) a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
• e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
• f) the other party ceases, or threatens to cease, to trade; or
• g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

18.2 On termination of this agreement for any reason:

• a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
• b) the Supplier shall return all Goods to the Customer within a reasonable time to be agreed between the Supplier and the Customer; and
• c) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

19. WARRANTIES

19.1 The Supplier warrants that:

• a) it has the necessary rights to enter into this agreement and perform the obligations contained within these Terms and Conditions and the quotation and schedules (if applicable); and
• b) it shall perform the Services in accordance with all applicable laws and regulations.

19.2 The Customer warrants that:

• a) it has the full capacity and all necessary rights to enter into this agreement; and
• b) it has obtained all necessary permissions and consents to allow the Supplier to perform the Services and to supply the Goods and Services to the End Users on its behalf and that the Goods do not infringe the rights (including Intellectual Property Rights) of any third party, comply with all health and safety and other applicable laws and regulations and are of a satisfactory quality and fit for their purpose; and
• c) the Goods do not contain any Prohibited Goods.

20. COMMUNICATIONS

20.1 All communications between the parties about the Contract and its subject matter shall be in writing and delivered by hand or sent by pre-paid first-class post, fax or electronic mail.

20.2 All notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

20.3 Communications shall be deemed to have been received:

• a) if sent by pre-paid first-class post, two Business Days after posting (exclusive of the day of posting); or
• b) if delivered by hand, on the day of delivery; or
• c) if sent by fax or electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.

20.4 Communications addressed to the Supplier shall be marked for the attention of the Customer’s Account Manager as detailed in the quotation.

21. INTELLECTUAL PROPERTY RIGHTS

21.1 All Intellectual Property Rights in the Website including the domain name and any Intellectual Property Rights created by the Supplier in the provision of the Services shall belong absolutely to and remain at all times vested with the Supplier unless otherwise agreed in writing between the Supplier and the Customer.

21.2 All Intellectual Property Rights in the Goods, any content provided by the Customer in order for the Supplier to provide the Services, brand and any trademarks or trade names of the Customer shall belong absolutely to the Customer (or its licensors) and shall remain at all times vested in the Customer (or its licensors).

21.3 With regard to Trademarks:

• a) The Customer hereby grants to the Supplier the non-exclusive right to use the Trademarks in the promotion, advertisement and sale of the Goods and Services in accordance with the Terms of this Contract.
• b) The Supplier shall not, without the prior written consent of the Customer, alter or make any addition to the labelling or packaging of the Goods displaying the Trade Marks, and shall not alter, deface or remove in any manner any reference to the Trade Marks, any reference to the Customer or any other name attached or affixed to the Goods or their packaging or labelling unless otherwise instructed or agreed in the quotation and schedules (if applicable) or in writing between the Customer and the Supplier.

22. CONFIDENTIALITY

22.1 Each Party undertakes to the other:

• a) to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received directly or indirectly as a result of the discussions leading up to or the entering into or performance of this Contract (the Information);
• b) not, without the other Party’s written consent, to disclose the Confidential Information in whole or in part to any other person save those of its employees, agents and sub-contractors involved in the supply of Goods and Services and who have a need to know the same; and
• c) to use the Confidential Information solely in connection with the supply of Goods and Services and not for its own benefit or the benefit of any third party.

22.2 The provisions of this clause shall not apply to the whole or any part of the Confidential Information to the extent that it is:

• a) trivial or obvious, already in the other Party’s possession other than as a result of a breach of this clause, or lawfully in the public domain
• b) is required to be disclosed to His Majesty’s Revenue and Customs (for any legal reason whatsoever), the courts of any competent jurisdiction, or to any government agency or financial authority.

22.3 Each Party undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of the Confidential Information and the provisions of this clause and without prejudice to the generality of the foregoing to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with the provisions of this clause.

22.4 This clause shall survive termination of this agreement however arising.

25 DATA PROTECTION

25.1 The following definitions apply in this clause

Agreed Purposes: for ordering and distribution purposes

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisation measures: as set out in the Data Protection Legislation.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder); and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party;

Permitted Recipients: the parties to this agreement, the employees of each party, any third parties engaged to perform obligations in connection with this agreement. Shared Personal Data: the personal data to be shared between the parties under this agreement.

Shared Personal Data shall be confined to the following types of information: the End-Users’ full names; contact details including address, postcode, email address and telephone numbers.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.

25.2 This clause sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (the Data Discloser) will regularly disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

25.3 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall constitute a material breach.

25.4 Each Party shall:

• 25.4.1 ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes.
• 25.4.2 give full information to any data subject whose personal data may be processed under this agreement of the nature of such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or transferred to one or more of the Permitted Recipients, their successors and assignees.
• 25.4.3 process the Shared Personal Data only for the Agreed Purposes.
• 25.4.4 not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients.
• 25.4.5 ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement.
• 25.4.6 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. 25.4.7 not transfer any personal data received from the Data Discloser outside the UK unless the transferor ensures that:
  • 25.4.7.1 the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or
  • 25.4.7.2 there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or
  • 25.4.7.3 the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or
  • 25.4.7.4 one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.

25.5 Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

• 25.5.1 consult with the other party about any notices given to data subjects in relation to the Shared Personal Data.
• 25.5.2 promptly inform the other party about the receipt of any data subject rights request.
• 25.5.3 provide the other party with reasonable assistance in complying with any data subject rights request.
• 25.5.4 not disclose, release, amend, delete or block any Shared Personal Data in response to a data subject rights request without first consulting the other party wherever possible.
• 25.5.5 assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators.
• 25.5.6 notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation.
• 25.5.7 at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the Shared Personal Data;
• 25.5.8 use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
• 25.5.9 maintain complete and accurate records and information to demonstrate its compliance with this clause; and
• 25.5.10 provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.

26. FORCE MAJEURE

26.1 In the event that either party is prevented from fulfilling its obligations under this Contract by reason of any supervening event beyond its control including but not limited to power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action, national emergency, pandemic, strike or lockout (subject to Sub-clause 26.2) the party shall not be deemed to be in breach of its obligations under this Contract. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.

26.2 Sub-clause 26.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.

26.3 If and when the period of such incapacity exceeds six months then this Contract shall automatically terminate unless the parties first agree otherwise in writing.

27. ASSIGNMENT

27.1 The Supplier may assign the Contract or any part of it to any person, firm or company without the prior consent of the Customer.

27.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.

28. WAIVER

No failure by the Supplier to enforce the performance of any provision of these Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

29. SEVERANCE

The Parties agree that, in the event that one or more of the provisions of these Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.

30. THIRD PARTY RIGHTS

A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.

31. VARIATION

31.1 The Customer shall not have the power to waive or vary any of the terms of these Terms and Conditions unless such waiver or variation is in writing and is specifically accepted, authorised or ratified in writing by the Supplier.

31.2 The Supplier reserves the right to change these Terms and Conditions from time to time by giving one month’s notice to the Customer. If such a change is not acceptable to the Customer, the Customer may terminate the Contract by giving 30 days’ written notice to the Supplier; such a notice must be given within seven days of being notified of the proposed changes.

32. GOVERNING LAW AND JURISDICTION

32.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

32.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.