General Terms and Conditions (GTC)
Iveagh Court, Harcourt Road, Dublin 2, D02YT22, Irland,
telephone: +353 1 571 5890, Telefax: +49 7231 397 62 950 , E-Mail: firstname.lastname@example.org
for luqel-water.com Onlineshop
We have slightly different terms and conditions depending on whether you are a consumer or an entrepreneur. For consumers within the meaning of the BGB (German Civil Code), special protective regulations apply in some cases, in particular a right of revocation. A consumer according to § 13 BGB is any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor their independent professional activity.
If you are a consumer, only the rules under “A.” below apply. Part “B.” (from number 9) is then in no way binding for you. If you are not a consumer, again only the rules set out below under “B.” (from clause 9) apply.
1.1 The following definitions and rules of interpretation apply in this Contract:
Additional Maintenance Charges: the charges payable in consideration of the provision of any Additional Maintenance Services, to be calculated in accordance with LUQEL’s standard rates from time to time.
Additional Maintenance Services: any maintenance services required to restore any defect or malfunctioning or failure in the Equipment where the defect or malfunctioning or failure results from or is caused by any of the Excluded Causes.
Business Day: a day, other than a Saturday, Sunday or public holiday in England or Wales.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions
Contract: the contract between LUQEL and the Customer in accordance with the Order, Conditions and the Schedules specified in the Order as amended or updated by LUQEL from time to time in writing.
Contract Period: the minimum period set out in the Order for rental and free on loan contracts.
Customer: the customer set out in the Order.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Delivery: the transfer of physical possession of the Equipment and / or Products from LUQEL to the Customer at the requested delivery address set out in the Order.
Equipment: the items of equipment to be provided and maintained under this Contract as set out in the Order, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Excluded Causes: the causes set out in clause 6.8.
Free on Loan Payments: the payments in respect of where the Equipment is provided on a free on loan basis, as set out in the Order.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
LUQEL: LUQEL Limited incorporated and registered in Ireland with company number IE608596 whose registered office is at Block E, Iveagh court, Harcourt road, Dublin 2, D02yt22.
Maintenance Period: the period of the maintenance services purchased by the Customer as set out in the Order, being a minimum of 12 months.
Maintenance Payments: the payments made by or on behalf of the Customer for the Maintenance Services as set out in the Order.
Maintenance Services: the maintenance services supplied by LUQEL to the Customer as set out in clause 6.
Order: the order form detailing the agreement between the parties.
Products: LUQEL branded and/or manufactured products and consumables as purchased and supplied by LUQEL to the Customer from time to time, including, but not limited to, mineralised water, drinking bottles and mineral bottles.
Purchase Price: the price for the Equipment and / or the Products, as set out in the Order.
Rental Payments: the payments for hire of the Equipment as set out in the Order.
Site: the installation site as set out in the Order.
VAT: value added tax or any equivalent tax chargeable in the UK.
1.2 Condition, Schedule and paragraph headings shall not affect the interpretation of this Contract.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 The Schedules form part of this Contract and shall have effect as if set out in full in the body of this Contract and any reference to this Contract includes the schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time, and all subordinate legislation made from time to time under that statute or statutory provision.
1.8 A reference to writing or written includes e-mail.
1.9 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.10 A reference to this Contract or to any other agreement or document referred to in this Contract is a reference to this Contract or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Contract) from time to time.
1.11 References to conditions and Schedules are to the conditions and Schedules of this Contract and references to paragraphs are to paragraphs of the relevant Schedule, the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to either:
2.1.1 purchase the Equipment;
2.1.2 rent the Equipment;
2.1.3 hire the Equipment on a free on loan basis; and / or
2.1.4 purchase the Products, in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when LUQEL issues written acceptance of the Order and confirms delivery at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. Rental and Free on Loan
3.1 Where the Equipment is supplied on a rental or free on loan basis the Contract will commence on the Commencement Date. Unless terminated earlier in accordance with clause 16 (Termination) or this clause, the Contract shall continue for the Contract Period (Initial Term) and shall automatically extend for 12 months (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party, not later than 3 months before the end of the Initial Term or the relevant Extended Term, to terminate the Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.
3.2 LUQEL shall not, other than in the exercise of its rights under the Contract or applicable law, interfere with the Customer’s quiet possession of the Equipment.
4.1 LUQEL will invoice the Customer for:
4.1.1 The Purchase Price at the rate set out in the Order on or at any time after it confirms the relevant Order to the Customer.
4.1.2 Rental Payments on the date of Delivery, and thereafter monthly.
4.1.3 Free on Loan Payments monthly in arrears.
4.2 The Customer shall pay all invoices due under the Contract within 30 days of receipt of the invoice and in full and in cleared funds to the bank account nominated in writing by LUQEL.
4.3 All payments are exclusive of VAT and any other applicable taxes, duties or similar charges which shall be payable by the Customer at the rate and in the manner from time to time prescribed by law.
4.4 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4.5 If the Customer fails to make a payment due to LUQEL under the Contract by the due date, then, without limiting LUQEL’s remedies under clause 16 (Termination):
4.5.1 the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
4.5.2 LUQEL may suspend all further deliveries of Equipment or Products or supply of Maintenance Services until payment has been made in full.
4.6 The Rental Payments and Free on Loan Payments shall be fixed for the first 12 months regardless of the Contract Period. LUQEL may increase the Rental Payments and Free on Loan Payments on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the CPI in the preceding 12-month period or 4%, whichever is the greater.
Free on loan payments based on consumed litres subject to the minimum consumption as agreed in the contract.
4.7 All invoice queries must be advised to LUQEL in writing within 30 days of invoice date, or they will be deemed correct and payable by the Customer.
5.1 Where Equipment is supplied on a free on loan or rental basis, the Free on Loan Payments and Rental Payments shall be inclusive of Maintenance Services for the duration of the Contract.
5.2 Where the Customer purchases Equipment the Customer must also purchase Maintenance Services.
5.3 The Maintenance Period will start on the Commencement Date and shall continue for the period specified in the Order and thereafter for successive periods of twelve (12) months (the “Renewal Term(s)”) (together the “Term”) unless terminated by either party giving three (3) months’ notice in writing to the other, such notice to expire upon the expiry of the then current Maintenance Period or any Renewal Term unless this Contract is terminated earlier in accordance with its terms.
6. Maintenance Services
6.1 LUQEL shall provide the Maintenance Services with reasonable care and skill. There are two categories of Services: preventive and reactive.
6.2 For preventive maintenance (twice yearly visits (unless otherwise agreed) to sanitise and replace the sediment and active carbon filters within the Equipment), the Maintenance Payments are inclusive of the travel, accommodation and labour costs of the LUQEL technicians, together with the replacement of parts (spare parts and auxiliary equipment, other than maintenance consumables which are excluded) which are observed to be defective during the preventive visit.
6.3 For reactive maintenance, in the event of an incident involving the Equipment and depending on the nature of that incident, LUQEL undertakes to do one or any of the following, as LUQEL considers appropriate:
6.3.1 to immediately provide by telephone, all instructions such as to enable the Equipment to be put back into service;
6.3.2 to dispatch any replacement parts as quickly as reasonably possible to enable the Equipment to be returned to working condition; and/or
6.3.3 to dispatch, where necessary, a technician from LUQEL’s after-sales department to the Customer’s site.
6.4 LUQEL reserves the right to use a reactive maintenance visit requested by the Customer to carry out preventive maintenance on:
6.4.1 Equipment which has broken down; and
6.4.2 any other Equipment which is located on the same Site and which is maintained by LUQEL under a contract entered into between the Customer and LUQEL.
6.5 The Customer shall take all steps necessary to ensure that LUQEL is able to carry out its tasks on the agreed date for the maintenance visit.
6.6 LUQEL undertakes to act within 72 hours after receiving the Customer’s call.
6.7 LUQEL committed response times are subject to the Equipment being connected to a network on the Customer’s premises. LUQEL reserves the right to increase maintenance response times if the Customer fails to enable access to networks. Customers are expected to notify LUQEL if network access changes. LUQEL retains the right to charge Customers if a maintenance visit is required to reconnect the Equipment.
6.8 The following services are expressly excluded from the Maintenance Services under the Contract (unless separately and specifically agreed in writing with the Customer and recorded on the Order):
6.8.1 repairs for breakdowns where the cause is not attributable to LUQEL or the Equipment;
6.8.2 services connected with the removal or moving of the Equipment and/or the consequences thereof;
6.8.3 the delivery of auxiliary equipment and consumables (including, but not limited to CO2 products);
6.8.4 making technical modifications to the Equipment on the request of the Customer or the addition of apparatus not provided by LUQEL;
6.8.5 the maintenance of Equipment modified by the Customer or by a third party without the prior written agreement of LUQEL;
6.8.6 the maintenance of any element of the Equipment which is connected, without LUQEL’s written agreement, to Equipment not supplied by it;
6.8.7 repairing damage arising from an accident, negligence, malevolent act, abnormal use or acts by the Customer or a third party;
6.8.8 repairing breakdowns or damage caused by a repair made to the Equipment by the Customer or one of its employees or agents or a third party, other than routine upkeep work which the Customer may be responsible for in accordance with LUQEL recommendations;
6.8.9 repairing breakdowns or damage caused by fire, water damage, power surge, lightning, natural disasters, strike, riot, civil uprising, civil war or war with foreign powers, action of public authorities or foreign powers;
6.8.10 repairs necessary due to failure to comply with instructions and recommendations for use and upkeep of the Equipment communicated by LUQEL, including in the documentation associated with the Equipment supplied by LUQEL;
6.8.11 any refurbishment required prior to entering into the Contract;
6.8.12 any repairs arising from scale related damage to the Equipment where LUQEL has advised the Customer that additional filter changes are necessary and the Customer has not acted on this advice;
6.8.13 the cost of repairing damage, or the cost of repairing parts damaged or worn due to negligence or deliberate acts of damage; and
6.8.14 the cost of additional filter changes required in addition to the 2 changes per annum included in the standard Maintenance Services.
6.9 LUQEL shall have the right to subcontract the Maintenance Services, but shall remain responsible for their proper provision.
6.10 LUQEL reserves the right to use reconditioned replacement parts, non-OEM parts or replacement parts that are not identical to the original provided with the Equipment.
6.11 Maintenance Services requiring the attendance of LUQEL representatives at Customer premises shall be supplied during normal business hours (09:00am-5:00pm) on Business Days unless otherwise agreed in writing by LUQEL.
6.12 LUQEL employees shall comply with all reasonable instructions and rules regarding health, safety and clean clothing applicable at the Site as are provided to LUQEL prior to the employees’ arrival at the Site.
7. Maintenance Payments
7.1 Where a Customer has purchased Maintenance Services, the Customer shall pay to LUQEL the Maintenance Payment in advance.7.2 Customers shall pay the Additional Maintenance Charges for work in connection with any excluded maintenance covered under clause 6.8 (Additional Maintenance Services) in accordance with LUQEL’s standard rates from time to time.
7.3 LUQEL shall invoice the Customer for the Maintenance Payment at the same time as the Purchase Price and thereafter on an annual basis until such time as the Maintenance Services are terminated.
7.4 LUQEL shall invoice the Customer in respect of Additional Maintenance Charges at the end of each month for Additional Maintenance Services performed during that month.
7.5 Unless otherwise stated in the Order, the Maintenance Payment shall increase by 4% each year upon the anniversary of the Commencement Date unless the purchased Maintenance Period is longer than 12 months.
7.6 For Equipment that is more than five (5) years old, and/or is deemed obsolete/unsupported LUQEL reserves the right to either:
7.6.1 increase the Maintenance Payment and Additional Maintenance Charges to account for the ageing of the Equipment;
7.6.2 cease to maintain the Equipment in the event that it is uneconomical to do so (in LUQEL’s sole discretion); and/or
7.6.3 cease to maintain the Equipment in the event that it is obsolete (in LUQEL’s sole discretion).
7.7 The Maintenance Payment and Additional Maintenance Charges shall be paid in accordance with clause 4.
8. Delivery, Installation, Relocation and / or re-installation
8.1 The delivery and installation of the Equipment will be carried out by LUQEL or a LUQEL representative. LUQEL shall use reasonable endeavors to effect Delivery and carry out the installation by the date and time agreed between the parties. Title and risk shall transfer to the Customer in accordance with clause 9.
8.2 The Customer shall ensure that a representative is present for the Delivery of the Equipment and at installation. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If requested by LUQEL, the representative is instructed to confirm the receipt of the Equipment in writing.
8.3 To facilitate the Delivery and safe installation of the Equipment, the Customer shall provide all necessary access to the Site(s), Wi-Fi, facilities and appropriate working conditions to enable Delivery and installation to be carried out safely and expeditiously.
8.4 Any relocation and/or re-installation of the Equipment shall be at the Customer’s cost at LUQEL’s prevailing rates.
9. Title, risk and insurance
9.1 The Equipment shall at all times remain the property of LUQEL, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to these Conditions) except where the Customer purchases the Equipment pursuant to Clause 2.1.1
9.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during the Contract Period and any further term during which the Equipment is in the possession, custody or control of the Customer (Risk Period) until such time as the Equipment is redelivered to LUQEL. During the Contract Period and the Risk Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
9.2.1 insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as LUQEL may from time to time nominate in writing;
9.2.2 insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as LUQEL may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
9.2.3 insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as LUQEL may from time to time consider reasonably necessary and advise to the Customer.
9.3 The Customer shall give immediate written notice to LUQEL in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment.
9.4 If the Customer fails to effect or maintain any of the insurances required under this agreement, LUQEL shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
9.5 The Customer shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to LUQEL and proof of premium payment to LUQEL to confirm the insurance arrangements.
This warranty is offered on the premise that the Equipment is kept in accordance with the operating instructions, operated in a suitable environment, and is used only for the purposes for which it is designed.
10.1 Luqel warrants that the Equipment shall substantially conform to its specification (as made available by LUQEL), be of satisfactory quality and fit for any purpose held out by LUQEL. LUQEL shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself within 12 months from the date of installation, unless a longer warranty is agreed in writing, provided that:
10.1.1 the Customer notifies LUQEL of any defect in writing within ten (10) Business Days of the defect occurring;
10.1.2 LUQEL is permitted to make a full examination of the alleged defect;
10.1.3 the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than LUQEL’s authorised personnel;
10.1.4 the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and
10.1.5 the defect is directly attributable to defective material, workmanship or design.
10.2 If LUQEL fails to remedy any material defect in the Equipment in accordance with Clause 10.1, LUQEL shall, at the Customer’s request, accept the return of the Equipment and replace it. Such replacement Equipment may be new or refurbished Equipment as determined by LUQEL in its sole discretion.
10.3 Once LUQEL has complied with the Customer’s request under Clause 10.2, it shall have no further liability to the Customer for the rejected Equipment’s failure to comply with Clause 10.1.
11. Customer’s responsibilities
11.1 The Customer shall during the term of this Contract:
11.1.1 ensure that the Equipment is cleaned and maintained in accordance with LUQEL’s instructions, kept and operated in a suitable environment, and is used only for the purposes for which it is designed and operated in accordance with any operating instructions that may be provided by LUQEL;
11.1.2 take such steps (including compliance with all safety and usage instructions that may be provided by LUQEL) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
11.1.3 at its own expense provide the necessary utilities to dispense water on the Customer’s Site. These utilities are set out in the operations manual and include rising main water connection with stop tap, 13amp/ 240volt power supply with a fully grounded earth and access to a waste water drain. All utilities must be located within 1 metre of the proposed Equipment Site;
11.1.4 make no alteration or modification to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of LUQEL unless carried out to comply with any mandatory modifications required by law or any regulatory authority or unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Subject to clause 9.1, title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in LUQEL immediately upon installation;
11.1.5 keep LUQEL fully informed of all material matters relating to the Equipment, including notifying LUQEL immediately upon becoming aware that the Equipment has malfunctioned;
11.1.6 permit LUQEL or its duly authorised representatives to inspect the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
11.1.7 maintain operating and maintenance records of the Equipment and make copies of such records readily available to LUQEL, together with such additional information as LUQEL may reasonably require;
11.1.8 not, without the prior written consent of LUQEL, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
11.1.9 not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify LUQEL and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify LUQEL on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
11.1.10 not use the Equipment for any unlawful purpose;
11.1.11 ensure that at all times the Equipment remains identifiable as being the property of LUQEL (except where it has been purchased by the Customer) and wherever possible shall ensure that a visible sign showing contact details for Maintenance Service call outs is provided; and
11.1.12 not do or permit to be done anything which could invalidate the insurances referred to in clause 9.
11.2 The Customer acknowledges that LUQEL shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer undertakes to indemnify LUQEL on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with the terms of this Contract.
12. Supply of additional Products from LUQEL
12.1 The Customer may from time to time place orders with LUQEL for the supply of additional Products either by submitting an Order or via the LUQEL online shop. If a Product is purchased on the basis of an Order then such purchase will be subject to these Conditions.
12.2 The Customer may request LUQEL to print the Customer’s logo or other mark (Design) onto the Products, in which case the Customer:
12.2.1 agrees that as far as it is aware, the Design does not breach and will not breach, the Intellectual Property Rights of any third party;
12.2.2 agrees that the Design does not contain anything that is defamatory or obscene, or unlawful in any other way; and
12.2.3 hereby grants a licence to LUQEL to use the Design for the purposes of printing the Design onto the Products only.
12.3 Where the Customer requests LUQEL to customise Products in accordance with clause 12.2, LUQEL shall have sole discretion as to whether it agrees to provide such customisation services and shall advise the Customer of the cost of such customisation services prior to accepting the Order.
13. Third party products
13.1 The Customer acknowledges that the supply of products or containers comprising CO2 (“CO2 Products”) for use with the Equipment is not included in this Contract and is the responsibility of the Customer.
13.2 The Customer shall be liable for and shall indemnify LUQEL against all loss and damage caused to LUQEL and/or the Equipment by the CO2 Products.
13.3 LUQEL expressly excludes all liability for any damage to the Customer’s or third party property (building or otherwise), which was caused by the CO2 Products.
13.4 The Customer shall observe all relevant safety procedures and codes of best practice in connection with the CO2 Products.
14. Intellectual Property
All Intellectual Property Rights in or arising out of or in connection with the supply of the Equipment, Products or Maintenance Services (other than Intellectual Property Rights in any Designs provided by the Customer) are owned by LUQEL.
15.1 The restrictions on liability in this clause 15 apply to every liability arising under or in connection with this Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
15.2 Without prejudice to clause 15.4, LUQEL’s total aggregate liability:
15.2.1 in respect of Maintenance Services, shall be limited, in each contract year, to the total Maintenance Payments that are paid by the Customer in the applicable contract year; and
15.2.2 in respect of all other claims, losses or damages arising in each contract year, shall not exceed the cap.
15.3 In Clause 15.2 the following definitions shall apply:
15.3.1 cap. The cap is one hundred per cent (100%) of the total charges in the contract year in which the breaches occurred;
15.3.2 contract year. The contract year means the 12-month period commencing with the Commencement Date or any anniversary of it; and
15.3.3 total charges. The total charges means all sums paid by the Customer under this Contract in respect of the Equipment or Products supplied by LUQEL.
15.4 Nothing in this Contract shall exclude or in any way limit:
15.4.1 either party’s liability for death or personal injury caused by its own negligence;
15.4.2 either party’s liability for fraud or fraudulent misrepresentation;
15.4.3 liability for any breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973; or
15.4.4 any other liability which cannot be excluded by law.
15.5 This Contract sets forth the full extent of LUQEL’s obligations and liabilities in respect of the supply of Equipment, Products and Maintenance Services to the Customer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on LUQEL except as specifically stated in this Contract. Any condition, warranty or other term concerning the Equipment, Products or Maintenance Services which might otherwise be implied into or incorporated within this Contract, whether by statute, common law or otherwise, is expressly excluded.
15.6 Without prejudice to condition 15.4, neither party shall be liable under this Contract for any:
15.6.1 loss of profit;
15.6.2 loss of sales or business;
15.6.3 loss of agreements or contracts;
15.6.4 loss of anticipated savings;
15.6.5 loss of use or corruption of software, data or information;
15.6.6 loss of or damage to goodwill; and
15.6.7 indirect or consequential loss or damage,
in each case, however caused, even if foreseeable.
15.7 This clause 15 shall survive termination of the Contract.
16.1 Without affecting any other right or remedy available to it, LUQEL may terminate this Contract with immediate effect by giving notice to the Customer if:
16.1.1 the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than ten (10) days after being notified to make such payment;
16.1.2 the Customer commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified to do so;
16.1.3 the Customer repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
16.1.4 the Customer 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 (“IA”) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA;
16.1.5 the Customer 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 for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
16.1.6 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 Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
16.1.7 an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer (being a company);
16.1.8 the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
16.1.9 a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
16.1.10 a creditor or encumbrancer of the Customer 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 the Customer’s assets and such attachment or process is not discharged within fourteen (14) days;
16.1.11 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 16.1.4 to condition 16.1.10 (inclusive); or
16.1.12 the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.2 Without limiting its other rights or remedies, LUQEL shall have the right to suspend provision of the Maintenance Services or all further deliveries of Products under the Contract or any other contract between the Customer and LUQEL if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 16.1.4 to Clause 16.1.12, or LUQEL reasonably believes that the Customer is about to become subject to any of them.
17. Consequences of termination
17.1 Upon termination of this Contract, however caused:
17.1.1 LUQEL’s consent to the Customer’s possession of the Equipment shall terminate and LUQEL may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
17.1.2 without prejudice to any other rights or remedies of the Customer, the Customer shall pay to LUQEL on demand:
126.96.36.199 all Rental Payments, Free on Loan Payments, Maintenance Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.5.1 and
188.8.131.52 any costs and expenses incurred by LUQEL in recovering the Equipment and/or in collecting any sums due under this Contract (including any storage, insurance, repair, transport and legal costs).
17.2 Upon termination of this Contract pursuant to clause 16.1 or any other repudiation of this Contract by the Customer which is accepted by LUQEL, without prejudice to any other rights or remedies of LUQEL, the Customer shall pay to LUQEL on demand a sum equal to the whole of the Rental Payments , Free on Loan Payments, and Maintenance Payments that would (but for the termination) have been payable if the Contract had continued from the date of such demand to the end of the Contract Period or Maintenance Period, less a discount for accelerated payment at the percentage rate set out in the Order.
17.3 The sums payable pursuant to clause 17.2 shall be agreed compensation for LUQEL’s loss and shall be payable in addition to the sums payable pursuant to Clause 184.108.40.206.
17.4 Termination or expiry of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
18. Force majeure
18.1 For the purposes of this Contract, a “Force Majeure Event” means an event beyond the reasonable control of LUQEL including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of LUQEL or any other party); failure of a utility service or transport network; act of God; war; riot; civil commotion; malicious damage; compliance with any law or governmental order, rule, regulation or direction; epidemic or pandemic; accident; breakdown of plant or machinery; fire; flood; storm; or default of suppliers or subcontractors.
18.2 LUQEL shall not be liable to the Customer as a result of any delay, hinderance or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
18.3 If the Force Majeure Event prevents LUQEL from providing any of its obligations under the Contract for more than ten (10) weeks, LUQEL shall, without limiting its other rights or remedies, have the right to:
18.3.1 revise any charges or payments due under the Contract to take account of the Force Majeure Event by giving written notice to the Customer; or
18.3.2 terminate this Contract immediately by giving written notice to the Customer.
19. Data Protection and Confidentiality
19.2 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 19.2.
19.3 Each party may disclose the other party’s confidential information:
19.3.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 19; and
19.3.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
19.4 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
20. Assignment and other dealings
This Contract is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate declare a trust over or deal in any other manner with any of its rights and obligations under this Contract.
21. Entire agreement
21.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
21.2 Each party acknowledges that in entering into this Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
23. No partnership or agency
23.1 Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
24. Further assurance
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Contract.
25.1 This Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Contract.
25.2 Transmission of the executed Order signature page of a counterpart of this Contract by e-mail (in PDF, JPEG or other agreed format) shall take effect as transmission of an executed counterpart of this Contract. If this method of delivery is adopted, without prejudice to the validity of the Contract thus made, each party shall provide the other with the original of such counterpart as soon as reasonably possible thereafter.
26. Third party rights
26.1 Unless it expressly states otherwise, this Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
26.2 The rights of the parties to rescind or vary this Contract are not subject to the consent of any other person.
27.1 Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
27.1.1 delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
27.1.2 sent by email to email@example.com for LUQEL and the email address specified on the Order for the Customer.
27.2 Any notice shall be deemed to have been received:
27.2.1 if delivered by hand, on signature of a delivery receipt;
27.2.2 if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the Business Day after posting; and
27.2.3 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. In this clause 27.2, business hours means 09:00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
27.3 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.
No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the 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.
29. Rights and remedies
Except as expressly provided in this Contract, the rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
30.1 If any provision or part-provision of this 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 this Contract.
30.2 If any provision or part-provision of this Contract is deemed deleted under condition 30.1, 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.
31. Governing law and jurisdiction
31.1 This 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 laws of England and Wales.
31.2 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 this Contract or its subject matter or formation.