Everyday Earth | SMI - Product brochure - Page 90
Customer:
negligence or for fraudulent misrepresentation or other fraud.
10.1.1 is in material breach of the Contract and (if such a breach is
remediable) fails to remedy that breach within 7 days of
Customer being notified to do so;
10.1.2 has any corporate action, application, order, proceeding or
appointment or other step taken or made by or in respect of it
for any composition or arrangement with creditors generally,
winding-up (other than for the purpose of a bona fide scheme
of solvent reconstruction or amalgamation), dissolution,
administration, receivership (administrative or otherwise) or
bankruptcy, or if it is unable to pay its debts as they fall due, or
if it ceases to trade or if a distress, execution or other legal
process is levied against any of its assets which is not discharged
or paid out in full within three Business Days or if any event
analogous to any of the foregoing shall occur in any jurisdiction
in which the relevant party is incorporated, resident or carries
on business;
10.1.3 the Customer’s financial position deteriorates so far that SMI
considers in its sole opinion that the Customer’s ability to give
effect to the terms of the Contract is jeopardised; or
11.6
SMI shall not be liable to the Customer for any claim unless made with
reasonable details in writing to SMI without unreasonable delay and in
any event no later than 3 months, or such longer period as may be
reasonable in the circumstances, after the date the claimable event
first came (or ought reasonably to have come) to the Customer’s
notice.
12
CONFIDENTIALITY
Neither party shall without the prior written consent of the other party
(during and after termination of any Contract) use (other than in the
performance of this Contract) or disclose to any other person any
Confidential Information of the other party, except that any
obligations contained in this clause shall not prevent any disclosure of
Confidential Information which is required by law, court order or any
legal or regulatory authority, which is required to comply with the rules
of any relevant stock exchange, or disclosure to a party’s professional
advisors, acting in their capacity as such.
13
SMI shall have the right to suspend delivery and/or cancel or reduce
the volume of the Products to be supplied as SMI shall see fit and shall
not be liable in any way for loss, damage or expense arising directly or
indirectly from this, or any other failure or delay in SMI’s performance
of the Contract, to the extent that this has been caused by any
circumstance beyond SMI’s reasonable control, including war (or other
action of military forces), terrorism, riot, civil commotion, sabotage,
vandalism, accident, breakdown or damage to machinery or
equipment, acts of God, fire, flood, severe weather conditions, extreme
traffic congestion, strike, lock-out or other industrial disputes (whether
or not involving employees of SMI) or failure or delays by SMI’s
suppliers.
10.1.4 if any sums due from the Customer to SMI remain outstanding
after the due date for payment.
10.2
Any termination however caused shall not affect any right or liabilities
which have accrued prior to the time of termination and the
continuance in force of any provision of the Contract which expressly
or by implication is intended to come into or continue in force after
termination.
11
LIMITATION OF LIABILITY
11.1
Subject to clause 11.5, SMI’s liability to the Customer however arising
out of or in connection with a Contract and/or the sale of the Products
shall be limited in respect of all claims in aggregate to a sum equal to
the total sums paid (exclusive of VAT) by the Customer for the Products
under the Contract giving rise to the claims.
11.2
Notwithstanding any other provision of the Contract, but subject to
clause 11.5, SMI shall have no liability however arising out of or in
connection with the Contract and/or the sale of the Products for any:
14
ENTIRE AGREEMENT
14.1
The Contract constitutes the entire agreement and understanding of
the parties and supersedes any previous agreement or understanding
between the parties with the respect to the arrangement contemplated
by or referred to in the Contract.
14.2
The Customer acknowledges that, in entering into each Contract, it
does not rely on, and shall have no remedy in respect of, any
representation, whether negligent or not, of any person (whether
party to the Contract or not) which is not expressly set out in the
Contract, and the only remedy available to it for breach of any
statement, representation or other term that is expressly set out in the
Contract shall be for breach of contract.
14.3
Nothing in this clause 14 shall, however, operate to limit or exclude any
liability for fraud or fraudulent misrepresentation.
15
GENERAL
15.1
SMI may assign, novate, charge or hold on trust for another any of its
interest under the Contract in whole or in part or sub-contract all or
any of its obligations under the Contract. The Customer shall not be
entitled to assign, novate, charge or hold on trust for another any of its
interest under the Contract in whole or in part or sub-contract all or
any of its obligations under the Contract without the prior written
consent of SMI (such consent not to be unreasonably withheld or
delayed).
15.2
Except as set out in clause 3, no other variation of the Contract shall be
effective unless it is agreed in writing and signed by the parties (or
their authorised representatives).
15.3
Save as expressly provided in these terms and conditions, the rights
and remedies provided by Contract are cumulative and (subject as
otherwise provided in these terms and conditions) are not exclusive of
any right or remedy provided by law. No exercise by a party of any one
right or remedy shall (save unless expressly provided otherwise)
operate so as to hinder or prevent the exercise by it of any other right
or remedy.
15.4
Any failure to exercise or delay by SMI in exercising a right or remedy
arising in connection with the Contract or by law shall not constitute a
waiver of such right or remedy or of any other rights or remedies. No
waiver shall be effective unless in writing and signed by SMI or on its
behalf by a duly authorised representative. A waiver of a right or
remedy on one occasion shall not constitute a waiver of the same right
or remedy in the future.
15.5
If any provision of these terms and conditions or the Contract is held by
any competent authority to be invalid or unenforceable in whole or in
part the validity of the other provisions of these terms and conditions
or the Contract and the remainder of the provision in question shall not
be affected thereby.
11.2.1 direct or indirect loss of or damage to:
(a)
profit;
(b)
revenue;
(c)
business;
(d)
contract;
(e)
opportunities;
(f)
anticipated savings;
(g)
data;
(h)
goodwill;
(i)
reputation;
(j)
use;
11.2.2 indirect or consequential loss or damage; or
11.2.3 claim arising out of a claim against the Customer by a third
party.
11.3
11.4
11.5
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The parties agree that each of the sub-clauses in clause 11.2 and each
of the sub-paragraphs 11.2.1(a) to 11.2.1(j) in sub-clause 11.2.1
constitute separate terms and the introductory wording of clause 11.2
shall be applied to each of them separately. If there is any claim or
finding that any such individual sub-clause or sub-paragraph is
unenforceable for any reason, such unenforceability shall not affect
any other provision within clause 11.2 or otherwise.
The term “however arising” when used or referred to in clause 11 covers
all causes and actions giving rise to the liability of SMI arising out of or
in connection with the Contract and/or the Products including (i)
whether arising by reason of any misrepresentation (whether made
prior to and/or in the Contract) negligence, breach of statutory duty,
other tort, repudiation, renunciation or other breach of contract,
restitution or otherwise; (ii) whether arising under any indemnity; or
(iii) whether caused by any total or partial failure or delay in supply of
SMI or defective Products
The exclusions and limitations of liability contained in these terms and
conditions and in the Contract shall apply regardless of whether the
loss or damage was foreseeable or whether the Customer notifies SMI
of the possibility of any greater loss or damage, but shall not apply to
the extent prohibited or limited by law and, in particular, nothing in the
Contract shall affect liability for death or personal injury caused by
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