Terms & Conditions

 

ClinkClink Standard Terms and Conditions of Business

 

These Terms and Conditions of Business (“Conditions”) and any Orders (as defined below) shall be together known as the Agreement. This Agreement governs the terms on which ClinkClink shall provide the Services and/or Goods to the Client.

 

 

  1. Interpretation

1.1 Definitions. In these Conditions, the following definitions apply:

 

“Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Commencement Date” has the meaning set out in clause 2.6;
“Conditions” these terms and conditions as amended from time to time in accordance with clause 18.7;
“Contract” the contract between ClinkClink and the Client for the supply of specific Goods and/or Services as set out in an Order Confirmation, agreed in accordance with the Agreement;
“Client” the person or company stated in the Order Confirmation, to whom the Goods and/or Services shall be provided;
“Delivery Location” has the meaning set out in clause 5.1;
“Fees” the fees set out in the Order Confirmation for each Contract;
“Force Majeure Event” has the meaning given to it in clause 16;
“Goods” the goods (or any part of them) set out in the Order Confirmation;
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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 Client’s order for the supply of Goods and/or Services, as set out in the Client’s written acceptance of ClinkClink’s quotation or the Order Confirmation as the case may be;
“Order Confirmation” means the Order Confirmation signed by ClinkClink and the Client, which sets out the Goods and the Services to be provided by ClinkClink;
“Services” the services, including the Goods, supplied by ClinkClink to the Client as set out in the Order Confirmation;
“ClinkClink” ClinkClink Limited trading as ClinkClink whose registered office is at Portwell Place, Portwell Lane, Bristol, BS1 6NA a company registered in England and Wales with company number 5677684;
“ClinkClink Materials” all materials, equipment, documents and other property of ClinkClink, its employees, consultants and subcontractors used or required to perform the Services and/or provide the Goods.

 

1.2       Construction. In these Conditions, the following rules apply:

1.2.1      a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

1.2.2      a reference to a party includes its personal representatives, successors or permitted assigns;

1.2.3      a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

1.2.4      any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.2.5      a reference to writing or written includes faxes and e-mails.

 

  1. Structure of this Agreement and Order formation

2.1       These Conditions are structured so that the parties will enter into individual Contracts and such Contracts are governed by and subject to these Conditions. In the event of inconsistency or conflict between these Conditions and any Contracts, the terms of the Contract shall take precedence to the extent only of the conflict or inconsistency.

2.2       These Conditions do not commit the Client to purchase any Goods and/or Services, and likewise, do not commit ClinkClink to provide any Goods and/or Services. The Client only becomes committed on purchasing and ClinkClink only becomes committed to provide any Goods and/or Services on signature by both parties of a Confirmation of Order in respect of such Goods and/or Services.

2.3       Each Confirmation of Order shall specify (as applicable) the scope of the Goods and/or Services and any obligations of each party additional to those set out in these Conditions, and the relevant Fees.

2.4       Each Confirmation of Order, unless otherwise agreed by the parties, shall constitute a separate Contract, which will incorporate these Conditions. Any undefined capitalised terms used in each Confirmation of Order shall have the meaning given to it in these Conditions.

2.5       The Order constitutes an offer by the Client to purchase the Goods and/or Services in accordance with these Conditions.

2.6       The Order shall only be deemed to be accepted when ClinkClink issues an Order Confirmation, which relates to the Order.  The date the Order Confirmation is signed by both parties, shall be the date on which the respective Contract shall come into existence (”Commencement Date“).

2.7       The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of ClinkClink, which is not set out in the Contract.

2.8       Any samples, drawings, descriptions, illustrations or otherwise provided by ClinkClink of the Goods and/or Services are provided for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.

2.9       These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.10     Any quotation given by ClinkClink shall not constitute an offer, and is only valid for a period of 30 days from its date of issue, unless otherwise stated in the quotation.

2.11     All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

2.12     The parties acknowledge that due to this being a framework Agreement, there could be more than one Contract in existence at any one time. The Client agrees that in the event of any delay, defect or breach of any Contract by ClinkClink, this shall not entitle the Client to terminate or cancel any other Contracts save as expressly provided in clause 3 below.

 

  1. Cancellation of Orders

3.1       The Client shall be entitled to cancel any Orders before the Commencement Date.  After the Commencement Date, the Client shall be able to entitled to cancel any Contract 14 Business Days before the date for delivery of the Goods and/or Services set out in the Order Confirmation, provided it immediately pays 100% of any costs or fees incurred or due to be paid by ClinkClink (whether such costs or fees relate to third party’s or ClinkClink) and which are incapable of being cancelled, and provided it immediately pays 50% of any costs of fees which are capable of being cancelled.

3.2       The right to cancel at clause 3.1, shall not apply to any made to measure or bespoke Goods or Services. This shall not affect your legal rights as a consumer in relation to made to measure or bespoke Goods or Services that are faulty or not as described.

 

  1. Goods

4.1       The Goods are described in the Order Confirmation.

4.2       To the extent that the Goods are to be manufactured in accordance with a Goods specification supplied by the Client, the Client shall indemnify ClinkClink 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 ClinkClink in connection with any claim made against ClinkClink for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with ClinkClink’s use of the Goods specification. This clause 4.2 shall survive termination of the Contract.

4.3       ClinkClink reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

 

  1. Delivery of Goods

5.1       ClinkClink shall deliver the Goods to the venue set out in the Order Confirmation or such other location as the parties may agree (”Delivery Location“) at any time after ClinkClink notifies the Client that the Goods are ready.

5.2       Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

5.3       Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. ClinkClink shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Client’s failure to provide ClinkClink with adequate delivery instructions, access to the venue or any other instructions that are relevant to the supply of the Goods.

5.4       If ClinkClink fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.

5.5       If the Client fails to accept or take delivery of the Goods within 24 hours of ClinkClink delivering to the Delivery Location, then except where such failure or delay is caused by a Force Majeure Event or by ClinkClink’s failure to comply with its obligations under the Contract in respect of the Goods:

5.5.1      delivery of the Goods shall be deemed to have been completed 24 hours after delivery at the Delivery Location; and

5.5.2      if ClinkClink has incurred any storage costs during this time, ClinkClink shall continue to store the Goods until delivery takes place, and charge the Client for all related costs and expenses (including insurance).

5.6       Notwithstanding the above, if the Client has not accepted delivery of the Goods other than as permitted under these Conditions, ClinkClink may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Goods or charge the Client for any shortfall below the price of the Goods.

5.7       The Client shall not be entitled to reject the Goods if ClinkClink delivers up to and including 5 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Client that the wrong quantity of Goods was delivered.

5.8       ClinkClink may deliver the Goods by installments. Any delay in delivery or defect in an installment shall not entitle the Client to cancel any other installment.

 

  1. Quality of Goods

6.1       ClinkClink warrants that on delivery the Goods shall:

6.1.1      conform in all material respects with their description set out in the Order Confirmation;

6.1.2      be free from material defects in design, material and workmanship;

6.2       Subject to clause 6.3, if:

6.2.1      the Client gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;

6.2.2      ClinkClink is given a reasonable opportunity of examining such Goods; and

6.2.3      the Client (if asked to do so by ClinkClink) returns such Goods to ClinkClink’s place of business at the Client’s cost,

ClinkClink shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

6.3       ClinkClink shall not be liable for the Goods’ failure to comply with the warranty in clause 6.1 if:

6.3.1      the Client makes any further use of such Goods after giving a notice in accordance with clause 6.2;

6.3.2      the defect arises because the Client failed to follow ClinkClink’s (or its representatives, suppliers, subcontractors or employees) oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

6.3.3      the defect arises as a result of ClinkClink following any drawing, design or Goods specification supplied by the Client;

6.3.4      the Client alters or repairs such Goods without the written consent of ClinkClink;

6.3.5      the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

6.3.6      the Goods comply materially with their description and any differences are subjective and/or were not expressly stated in the Order Confirmation;

6.3.7      the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

6.4       Except as provided in this clause 6, ClinkClink shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.

6.5       The terms of these Conditions shall apply to any repaired or replacement Goods supplied by ClinkClink under clause 6.2.

 

  1. Title and risk

7.1       The risk in the Goods shall pass to the Client on completion of delivery.

7.2       Title to the Goods shall not pass to the Client until the earlier of:

7.2.1      ClinkClink receives payment in full (in cash or cleared funds) for the Goods and any other goods that ClinkClink has supplied to the Client in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and

7.2.2      the Client resells the Goods, in which case title to the Goods shall pass to the Client at the time specified in clause 7.4.

7.3       Until title to the Goods has passed to the Client, the Client shall:

7.3.1      store the Goods separately from all other goods held by the Client so that they remain readily identifiable as ClinkClink’s property;

7.3.2      not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

7.3.3      maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on ClinkClink’s behalf from the date of delivery;

7.3.4      notify ClinkClink immediately if it becomes subject to any of the events listed in clause 15.3.2 to clause 15.3.13; and

7.3.5      give ClinkClink such information relating to the Goods as ClinkClink may require from time to time.

7.4       Subject to clause 7.5, the Client may resell or use the Goods in the ordinary course of its business (but not otherwise) before ClinkClink receives payment for the Goods. However, if the Client resells the Goods before that time:

7.4.1      it does so as principal and not as ClinkClink’s agent; and

7.4.2      title to the Goods shall pass from ClinkClink to the Client immediately before the time at which resale by the Client occurs.

7.5       If before title to the Goods passes to the Client the Client becomes subject to any of the events listed in clause 15.3.2 to clause 15.3.13, then, without limiting any other right or remedy ClinkClink may have:

7.5.1      the Client’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and

7.5.2      ClinkClink may at any time:

7.5.2.1    require the Client to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

7.5.2.2    if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Goods are stored in order to recover them.

 

  1. Supply of Services

8.1       ClinkClink shall provide the Services to the Client in accordance with the Order Confirmation, in all material respects.

8.2       ClinkClink shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

8.3       ClinkClink shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and ClinkClink shall notify the Client in any such event.

8.4       ClinkClink warrants to the Client that the Services will be provided using reasonable care and skill.

 

  1. Client’s obligations

9.1       The Client shall:

9.1.1      ensure that the terms of the Order and Order Confirmation and (if included in the Order Confirmation) any specification for the Goods are complete and accurate;

9.1.2      co-operate with ClinkClink in all matters relating to the Services;

9.1.3      provide ClinkClink, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by ClinkClink to provide the Services;

9.1.4      provide ClinkClink with such information and materials as ClinkClink may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

9.1.5      prepare the Client’s premises or venue stated in the Order Confirmation for the supply of the Services;

9.1.6      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;

9.1.7      keep and maintain all ClinkClink Materials at the Client’s premises in safe custody at its own risk, maintain ClinkClink Materials in good condition until returned to ClinkClink, and not dispose of or use ClinkClink Materials other than in accordance with ClinkClink’s written instructions or authorisation.

9.2       If ClinkClink’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation, including where the Client is providing services to an end client and the end client has failed to comply with its obligations to the Client (”Client Default“):

9.2.1      ClinkClink shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays ClinkClink’s performance of any of its obligations;

9.2.2      ClinkClink shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from ClinkClink’s failure or delay to perform any of its obligations as set out in this clause 9.2; and

9.2.3      the Client shall pay all Fees which would have been due in accordance with the Order Confirmation notwithstanding the Client Default and/or reimburse ClinkClink on written demand for any costs or losses sustained or incurred by ClinkClink arising directly or indirectly from the Client Default, including without limitation, costs or fees due to suppliers of ClinkClink, storage costs and/or costs of rescheduled or additional resources required to complete its obligations in line with the delayed timescale.

 

  1. Charges and payment

10.1     The Fees are exclusive of all VAT and other sales taxes, costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Client when it pays for the Goods.

10.2     Where the Fees for the Services shall be on a time and materials basis:

10.2.1    the charges shall be calculated in accordance with ClinkClink’s standard daily fee rates, as set out in the Order Confirmation;

10.2.2    ClinkClink’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 9.00 am to 5.00 pm worked on Business Days;

10.2.3    ClinkClink shall be entitled to charge an overtime rate for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 10.2.2; and

10.2.4    ClinkClink shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom ClinkClink engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by ClinkClink for the performance of the Services, and for the cost of any materials.

10.3     ClinkClink reserves the right to:

10.3.1    increase the price of the Goods, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Goods to ClinkClink that is due to:

10.3.1.1  any factor beyond the control of ClinkClink (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

10.3.1.2  any request by the Client to change the delivery date(s), quantities or types of Goods ordered, or the specifications for the Goods from that set out in the Order Confirmation; or

10.3.1.3  any delay caused by any instructions of the Client in respect of the Goods or failure of the Client to give ClinkClink adequate or accurate information or instructions in respect of the Goods.

10.4     The Fees shall be paid in accordance with the Contract, save where this is not expressly stated, the Fees shall be paid: 50% of the Fees on or before the Commencement Date and 50% of the Fees, 30 days after receipt of an invoice for the remaining balance of the Fees.

10.5     The Client shall pay each invoice submitted by ClinkClink:

10.5.1    in accordance with the terms of the invoice, save where this is not stated, within 30 days of the date of the invoice; and

10.5.2    in full and in cleared funds to a bank account nominated in writing by ClinkClink, and time for payment shall be of the essence of the Contract.

10.6     All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (”VAT“). Where any taxable supply for VAT purposes is made under the Contract by ClinkClink to the Client, the Client shall, on receipt of a valid VAT invoice from ClinkClink, pay to ClinkClink such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

10.7     If the Client fails to make any payment due to ClinkClink under the Contract by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 6% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

10.8     The Client shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. ClinkClink may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by ClinkClink to the Client.

 

  1. Intellectual property rights

11.1     All Intellectual Property Rights in or arising out of or in connection with the Services and Goods shall be owned by ClinkClink or its licensors.

11.2     The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Services and Goods, the Client’s use of any such Intellectual Property Rights is conditional on ClinkClink obtaining a written licence from the relevant licensor on such terms as will entitle ClinkClink to license such rights to the Client.

11.3     All ClinkClink Materials are the exclusive property of ClinkClink.

 

  1. Confidentiality

A party (”receiving party“) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, supplier details or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (”disclosing party“), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under this Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to this Agreement. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 12 shall survive termination of this Agreement. The Client agrees that unless otherwise stated in the Order Confirmation, ClinkClink can refer to the Client as a client of ClinkClink and can refer to specific projects set out in each Contract, provided the copy of any such reference is approved in writing in advance by the Client.

 

  1. Insurance

13.1     ClinkClink shall have in place for the duration of these Conditions, the following insurance with an insurer of repute: Public and Products Liability (£5 million) and Employers Liability Insurance (£10 million).

 

  1. Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

14.1     Nothing in these Conditions shall limit or exclude ClinkClink’s liability for:

14.1.1    death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

14.1.2    fraud or fraudulent misrepresentation;

14.1.3    breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);

14.1.4    breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or

14.1.5    defective products under the Consumer Protection Act 1987.

14.2     Subject to clause 14.1:

14.2.1    ClinkClink shall under no circumstances whatever be liable to the Client, 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

14.2.2    ClinkClink’s total liability to the Client 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, shall in no circumstances exceed the Fees paid in the past 6 months to ClinkClink which relate to the Contract, under which the losses have arisen.

14.3     The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

14.4     This clause 14 shall survive termination of any Contract and these Conditions.

 

  1. Term and Termination

15.1     These Conditions will come into force on the Commencement Date of the first Contract between the parties and shall continue in force unless and until terminated by either party.

15.2     Without limiting its other rights or remedies either party may terminate these Conditions by giving the other party not less than 3 months’ written notice provided all Contracts have been completed by the expiry of such notice.

15.3     Without limiting its other rights or remedies, each party may terminate these Conditions (being these Conditions and all Contracts) with immediate effect by giving written notice to the other party if:

15.3.1    the other party commits a material breach of its obligations under these Conditions or any Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;

15.3.2    the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;

15.3.3    the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

15.3.4    a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;

15.3.5    the other party (being an individual) is the subject of a bankruptcy petition or order;

15.3.6    a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

15.3.7    an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);

15.3.8    the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

15.3.9    a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

15.3.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.3.2 to clause 15.3.9 (inclusive);

15.3.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;

15.3.12 the other party’s financial position deteriorates to such an extent that in ClinkClink’s opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

15.3.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

15.4     Without limiting its other rights or remedies, ClinkClink may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Agreement on the due date for payment.

15.5     Without limiting its other rights or remedies, ClinkClink may suspend the supply of Services or all further deliveries of Goods under the Agreement or any other contract between the Client and ClinkClink if the Client fails to pay any amount due under this Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 15.3.2 to clause 15.3.13, or ClinkClink reasonably believes that the Client is about to become subject to any of them.

15.6     On termination of the Contract for any reason:

15.6.1    the Client shall immediately pay to ClinkClink all of ClinkClink’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, ClinkClink shall submit an invoice, which shall be payable by the Client immediately on receipt;

15.6.2    the Client shall return all of ClinkClink Materials and any Goods, which have not been fully paid for. If the Client fails to do so, then ClinkClink may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

15.6.3    the accrued rights and remedies of the parties as at termination shall not be affected, 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; and

15.6.4    clauses which expressly or by implication have effect after termination shall continue in full force and effect.

  1. Force majeure

16.1     For the purposes of this Contract, ”Force MajeureEvent means: (a) an event beyond the reasonable control of ClinkClink including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of ClinkClink or any other party), failure of a utility service or failure or delays of a mode of transport, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of ClinkClink’s or subcontractors or suppliers;  and (b) any Health and Safety Risk Assessment carried out by ClinkClink or a third party which concludes that the risks of performing the Services and/or providing the Goods should not be undertaken in the current circumstances.

16.2     ClinkClink shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

16.3     If the Force Majeure Event prevents ClinkClink from providing any of the Services and/or Goods for more than 5 Business Days, ClinkClink shall, without limiting its other rights or remedies, have the right to terminate the Contract to which the delay relates, immediately by giving written notice to the Client and charge the Client the Fees associated with the Contract, notwithstanding the Force Majeure Event.

 

  1. Non Solicitation

17.1     In order to protect the confidential information and business connections of ClinkClink, the Client covenants with ClinkClink that it shall not during the duration of these Conditions and:

17.1.1    for 6 months after termination of these Conditions, offer to employ or engage or otherwise endeavour to entice away from ClinkClink any employee, consultant or subcontractor of ClinkClink (“Restricted Person”);

17.1.2    for 6 months after termination of these Conditions, offer to contract with, appoint or engage or otherwise endeavour to contract with, appoint or engage any suppliers or subcontractors of ClinkClink which have been involved in any Contract (“Restricted Supplier”);

17.1.3    for 6 months after termination of these Conditions, employ or engage or otherwise facilitate the employment or engagement of any Restricted Person or Restricted Supplier, whether or not such person or entity would be in breach of contract as a result of such employment, engagement, appointment or contract.

17.2     The restrictions imposed on the Referee by this clause apply to the Referee, acting:

17.2.1    directly or indirectly; and

17.2.2    on its own behalf or on behalf of, or in conjunction with, any firm, company or person.

 

  1. General

18.1     Assignment and other dealings
18.1.1    ClinkClink may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

18.1.2    The Client shall not, without the prior written consent of ClinkClink, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

18.2     Notices

18.2.1    Any notice or other communication given to a party under or in connection with this Contract shall 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, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

18.2.2    A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

18.2.3    The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action

18.3     Severance

18.3.1    If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

18.3.2    If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

18.4     Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.5     No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

18.6     Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

18.7     Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by ClinkClink.

18.8     Governing law. This agreement 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) shall be governed by and construed in accordance with the law of England and Wales.

18.9     Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).