16. Limitation of liability.
16.1 References to liability in this clause 16 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
16.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
- (a) death or personal injury caused by negligence;
- (b) fraud or fraudulent misrepresentation;
- (c) breach of the terms implied by section 12 of the Sale of
Equipment Act 1979; or
- (d) defective products under the Consumer Protection Act 1987.
16.3 Subject to clause 16.2, Thirsty Work’s total liability to the Customer shall not exceed the price payable for the Equipment and Installation Equipment in the case of an Order Form for the supply of Equipment and Installation Equipment, or in the case of the Maintenance Services, a price equal to that received by Thirsty Work within a period of 12 months for the provision of such Maintenance Services.
16.4 Subject to clause 16.2, the following types of loss are wholly excluded:
- (a) loss of profits;
- (b) loss of sales or business;
- (c) loss of agreements or contracts;
- (d) loss of anticipated savings;
- (e) loss of use or corruption of software, data or information;
- (f) loss of or damage to goodwill; and
- (g) indirect or consequential loss.
16.5 This clause 16 shall survive termination of the Contract.
17.1 Without limiting its other rights or remedies, Thirsty Work may terminate this Contract with immediate effect by giving written notice to the Customer if:
- (a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
- (b) the Customer 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 Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- (d) the Customer’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.
17.2 Without limiting its other rights or remedies, Thirsty Work may suspend provision of the Equipment and/or Maintenance Services under the Contract or any other contract between the Customer and Thirsty Work if the Customer becomes subject to any of the events listed in clause 17.1(b) to clause 17.1(d), or Thirsty Work reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
17.3 Without limiting its other rights or remedies, Thirsty Work may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
17.4 On termination of the Contract for any reason the Customer shall immediately pay to Thirsty Work all of Thirsty Work’s outstanding unpaid invoices and interest and, in respect of Equipment supplied but for which no invoice has been submitted, Thirsty Work shall submit an invoice, which shall be payable by the Customer immediately on receipt.
17.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination , including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination .
17.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
18. Force majeure.
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 7 days’ written notice to the affected party.
19. Assignment and other dealings.
- (a) Thirsty Work may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
- (b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Thirsty Work.
- (a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or Thirsty Works of the other party, except as permitted by clause 20(b).
- (b) Each party may disclose the other party’s confidential information:
- (i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 20; and
- (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- (c) Neither party shall use the 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. Entire agreement.
- (a) The Contract constitutes the entire agreement between the parties.
- (b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- (a) Except as set out in clause 2.6, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
- (b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 24 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- (a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- (i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- (ii) sent by email to the addresses (or an address substituted in writing by the party to be served) contained in the Order Form.
- (b) Any notice shall be deemed to have been received:
- (i) if delivered by hand, at the time the notice is left at the proper address;
- (ii) 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; or
- (iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
- (c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
26. Third party rights.
- (a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- (b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
In this agreement:
- (a) A person includes any natural person, corporate or unincorporated body;
- (b) A reference to a party includes its personal representatives, successors and permitted assigns;
- (c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision;
- (d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms;
- (e) A reference to writing or written excludes fax but not email; and
- (f) The following words shall have the following meanings:
- (i) Contract: the contract between Thirsty Work and the Customer for the sale and purchase of the Equipment and/or the supply of the Services, in each case as set out in the Order Form and provided in accordance with these Conditions.
- (ii) Customer: the person or firm who purchases the Equipment and/or procures the supply of the Services from Thirsty Work as set out in the Order Form.
- (iii) Customer’s Equipment: means any of the Customer’s equipment, set out in the Order Form, that Thirsty Work shall be providing Maintenance Services on as part of the Contract.
- (iv) Equipment: the Equipment and any Installation Equipment (or any part of them) set out in the Order Form.
- (v) Order Form: the Customer’s order for the Equipment and/or the supply of Services, to which these Conditions are attached.
- (vi) Services: the Installation Services, Customer Equipment Inspection Services and Maintenance Services
- (vii) Specification: any specification for the Equipment, including any related plans and drawings, that is agreed by the Customer and Thirsty Work.
- (viii) Thirsty Work: Thirsty Work Limited (registered in England and Wales with company number 07125158).
- (ix) Maintenance Services: Routine Maintenance, Corrective Maintenance and Emergency Maintenance.
28. Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.