Totalkare Heavy Duty Workshop Solutions Ltd
Conditions of Business
TERMS & CONDITIONS FOR THE SUPPLY OF PRODUCTS AND SERVICES
The Customer’s attention is particularly drawn to the provisions of clause 14 (Limitation of liability).
1. Definitions and Interpretation
1.1 The following definitions apply in these Conditions.
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 given in clause 2.2 or clause 2.5 as the case maybe.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.8.
Contract: the contract between Totalkare and the Customer for the supply of Products and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Products and/or Services from Totalkare.
Delivery Location: has the meaning given in clause 4.1 or clause 4.2 as the case maybe.
Force Majeure Event: has the meaning given to it in clause 17.1.
Products: the Products (or any part of them) to be supplied by Totalkare pursuant to the Contract; including, as applicable, products which are to be supplied in the performance of the Services and in which title is intended to pass to the Customer upon completion of the Services.
Products Specification: the specification for the Products as provided by Totalkare to the Customer.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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 Customer’s order for the supply of Products and/or Services (whether placed via a purchase order form, an email, verbally or otherwise) or the Customer’s written acceptance of Totalkare’s quotation as the case may be.
Services: the services to be supplied by Totalkare to the Customer pursuant to the Contract and as applicable the Service Specification.
Service Specification: the description or specification for the Services as provided by Totalkare to the Customer.
Totalkare: Totalkare Heavy Duty Workshop Solutions Ltd a company registered in England and Wales with company number 05256574 and whose registered office is Block G1 Dandy Bank Road, Pensnett Trading Estate, Kingswinford, England, DY6 7TD.
Totalkare Materials: has the meaning given in clause 9.1.7.
Warranty Period: the warranty period referred to clause 6.1.
Written Acceptance of Order: has the meaning given in clause 2.2.
1.2 The following rules of interpretation shall apply in these Conditions:
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 and permitted assigns.
1.2.3 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.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate (including any conditions of purchase), or which are implied by law, trade custom, practice or course of dealing.
2.2 An Order submitted by the Customer constitutes an offer by the Customer to purchase the Products and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted when Totalkare issues a written acceptance of the Order (Written Acceptance of Order) to the Customer, at which point the Contract shall come into existence (the Commencement Date).
2.3 A quotation for the Products and/or Services given by Totalkare shall not constitute an offer to contract. Unless otherwise specified in the Totalkare’s quotation, a quotation shall only be valid for a period of 30 days from its date of issue.
2.4 All of these Conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.
2.5 Where the Customer and Totalkare both sign a Totalkare service contract form referring and subject to these Conditions, then the Contract shall come into force on the date that both parties sign the Totalkare service contract; and if signed on different dates then the Contract shall come into force on the date that the last party signs (the Commencement Date).
2.6 Any samples, drawings, descriptive matter or advertising issued by Totalkare and any descriptions of the Products or illustrations or descriptions of the Services contained in Totalkare’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Products described in them. They shall not form part of the Contract nor have any contractual force.
2.7 No oral / verbal statement or representation made by a Totalkare member of staff shall be binding upon Totalkare or form a term of the Contract unless given by a company director of Totalkare and subsequently confirmed in writing by the director or his nominee.
2.8 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.9 Where Totalkare requires the payment of a deposit then the Customer shall pay the prescribed amount to Totalkare’s designated bank account in cleared funds forthwith upon receiving Totalkare’s Written Acceptance of Order. Without prejudice to its other rights and remedies Totalkare shall not be obliged to commence work or make a supply under the Contract unless and until the deposit has been paid in full by the Customer to Totalkare in accordance with this condition. All deposits are non-refundable. The deposit provides some security against the Customer failing to pay any sums due to Totalkare under the Contract.
3.1 To the extent that the Products are to be manufactured or adapted in accordance with a Products Specification supplied by the Customer, the Customer shall indemnify Totalkare 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 costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Totalkare arising out of or in connection with any claim made against Totalkare for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Totalkare’s use of the Products Specification. This clause 3.1 shall survive termination of the Contract.
3.2 Totalkare reserves the right to amend the Products Specification if required by any applicable statutory or regulatory requirement, and Totalkare shall notify the Customer in any such event.
4. Delivery of Products
4.1 Where it has been agreed that Totalkare shall deliver the Products then Totalkare shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Totalkare notifies the Customer that the Products are ready. Delivery of the Products shall be completed on the arrival of the Products at the Delivery Location.
4.2 Where it has been agreed that the Customer shall collect the Products then the Customer shall collect the Products from Totalkare’s premises at Block G1 Dandy Bank Road, Pensnett Trading Estate, Kingswinford England, DY6 7TD or such other location as may be agreed with the Customer prior to delivery (Delivery Location), within three Business Days of Totalkare notifying the Customer that the Products are ready. Delivery of the Products shall be completed on the Products being made available to the Customer, or to the carrier as the case maybe, to load at the Delivery Location.
4.3 Any dates quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence. Totalkare shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide Totalkare with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.4 If Totalkare fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. Totalkare shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Totalkare with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.5 If the Customer fails to accept delivery of the Products within three Business Days of Totalkare notifying the Customer that the Products are ready (or, as applicable, fails to collect the Products within three Business Days of Totalkare notifying the Customer that the Products are ready for collection) then, except where such failure or delay is caused by Totalkare’s failure to comply with its obligations under the Contract:
4.5.1 delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Totalkare notified the Customer that the Products were ready; and
4.5.2 Totalkare shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If eight Business Days pass after the day on which Totalkare notified the Customer that the Products were ready for delivery or collection (as the case maybe) and the Customer has not taken or accepted actual delivery of them, then Totalkare may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.7 Totalkare may deliver the Products by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Storage of Products
5.1 This clause 5 applies in circumstances where Totalkare has (at its entire discretion) agreed in writing to a request from the Customer to store Products (the Stored Products) for a defined period (the Defined Storage Period). In this regard the Customer agrees that notwithstanding the retention of the Stored Products by Totalkare on the Customer’s behalf:
5.1.1 the Stored Products shall be deemed to have been delivered to the Customer on the first day of storage; and the first day of storage shall be determined by Totalkare, being the date on which, but for the Customer’s request for Totalkare to store the Products, Totalkare, or it carriers, would ordinarily have delivered the Products to the Cusomer had clause 4.1 applied: and
5.1.2 Totalkare shall be entitled to render an invoice for the price of the Stored Products on, or at any time after, the first day of storage which shall be payabe in full by the Customer without deduction or set off. Totalkare shall also be entitled to charged the Customer storage costs at its then current rates.
5.2 If eight Business Days pass after the expiry of the Defined Storage Period and the Customer has not collected or accepted actual delivery of the Stored Prodcuts, then Totalkare may resell or otherwise dispose of part or all of the Stored Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Stored Products or charge the Customer for any shortfall below the price of the Stored Products.
6. Quality of Products
6.1 Unless a differing Warranty Period has been expressly agreed by the Totalkare and the Customer and and confirmed by Totalkare in writing:
6.1.1 Totalkare warrants that new Products sold will be free from defects in materials and workmanship and will conform in all material respects with any applicable Product or Services Specification for the period of 12 months from the date of delivery of the Products to the Customer; and
6.1.2 Totalkare warrants that reconditioned Products and ex demonstration Products sold will be free from defects in materials and workmanship and will conform in all material respects with any applicable Product Specification for the period of 6 months from the date of delivery of the Products to the Customer.
6.2 Subject always to clause 6.3, if:
6.2.1 the Customer gives notice in writing to Totalkare during the Warranty Period and within 5 Business Days of the defect becoming apparent or suspected (or within 5 Business Days of when the defect ought reasonably have become apparent to or suspected by the Customer);
6.2.2 Totalkare is given a reasonable opportunity of examining the Products in issue as installed;
6.2.3 the Customer (if asked to do so by Totalkare) provides photographic and/or video evidence of the Products in issue; and
6.2.4 the Customer (if asked to do so) returns such Products to Totalkare’s place of business at the Customer’s cost
then on accepting that the warranty claim is valid and falling with the terms of the warranty set out in clause 6.1, Totalkare shall in respect of:
6.2.5 new Products, at Totalkare’s option, repair (where practical) or replace the defective Products, or refund the price of the defective Products (having deducted a reasonable amount as regards any period of operational use by the Customer of the Product);
6.2.1 reconditioned or ex demonstration Products and subject to the proviso of this clause, at Totalkare’s option, repair (where practical) or replace the defective Products (including replacement with used or reconditioned parts), or refund the price of the defective Products (having deducted a reasonable amount as regards any period of operational use by the Customer of the Product) provided always that as regards reconditioned and ex demonstration Products identical replacement parts / products may no longer be commercially available and in these circumstances Totalkare reserves the right to replace with equivalent parts / products where such equivalent parts / products do not have a material and detrimental impact on performance.
6.3 Totalkare shall not have any liability under the warranty set out in clause 6.1 if one or more of the following applies
6.3.1 the Customer makes any further use of the Products in issue after giving a notice in accordance with clause 6.2;
6.3.2 the defect or issues arises because the Customer has failed to follow Totalkare’s instructions as to the storage, installation, commissioning, use or maintenance or (if there are none) good trade practice regarding the same;
6.3.3 the defect or issues arise as a result of Totalkare following any drawing, design or specification supplied by the Customer;
6.3.4 the Customer alters or repairs such Products and/or the subject matter of the Services in issue without the written consent of Totalkare;
6.3.5 the defect or issues arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; and
6.3.6 the Customer owes Totalkare any sums that have passed their due date for payment, whether in relation to the Contract or in relation to any other any account whatsoever.
6.4 Except as provided in this clause 6, Totalkare shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 6.1. In particular Totalkare shall be under no liability in respect of any defects or faults arising after risk in the Products has passed which is caused by any subsequent mechanical, chemical, electrolytic related event or other damage not due to a defect in the Products and/or Services as appropriate.
6.5 Any work carried out by Totalkare which is not covered by the warranty set out in clause 6.1 will be charged for at Totalkare’s then current standard time and material rates.
6.6 The warranty set out in clause 6.1 shall apply to any repaired or replacement Products supplied by Totalkare for such period of time as equals: (a) the unexpired period of the warranty at the time the Customer gave notice in accordance with clause 5.2 or (b) 3 months, whichever is the longer period.
7. Title and risk
7.1 The risk in the Products shall pass to the Customer on completion of delivery.
7.2 Title to the Products shall not pass to the Customer until the earlier of:
7.2.1 Totalkare receives payment in full (in cash or cleared funds) for the Products and any other Products that Totalkare has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums; and
7.2.2 the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 7.4.
7.3 Until title to the Products has passed to the Customer, the Customer shall:
7.3.1 store the Products separately from all other Products held by the Customer so that they remain readily identifiable as Totalkare’s property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
7.3.3 maintain the Products in satisfactory condition and keep them insured against all risks for their full price on Totalkare’s behalf from the date of delivery;
7.3.4 notify Totalkare immediately if it becomes subject to any of the events listed in clause 15.1.2 to clause 15.1.4; and
7.3.5 give Totalkare such information as Totalkare may reasonably require from time to time relating to (a) the Products; and (b) the ongoing financial position of the Customer.
7.4 Subject to clause 7.5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before Totalkare receives payment for the Products. However, if the Customer resells the Products before that time:
7.4.1 it does so as principal and not as Totalkare’s agent; and
7.4.2 title to the Products shall pass from Totalkare to the Customer immediately before the time at which resale by the Customer occurs.
7.5 At any time before title to the Products passes to the Customer, Totalkare may:
7.5.1 by notice in writing, terminate the Customer’s right under clause 7.4 to resell the Products or use them in the ordinary course of its business; and
7.5.2 require the Customer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
8. Supply of Services
8.1 Totalkare shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
8.2 Totalkare shall use all reasonable endeavours to meet any performance dates for the Services that it has previously specified in writing but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 Totalkare reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Totalkare shall notify the Customer in any such event.
8.4 Totalkare warrants to the Customer that the Services will be provided using reasonable care and skill.
9. Customer’s obligations
9.1 The Customer shall:
9.1.1 ensure that the terms of the Order and any information it provides to Totalkare is complete and accurate;
9.1.2 co-operate with Totalkare in all matters relating to the Services;
9.1.3 provide Totalkare, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Totalkare to provide the Services;
9.1.4 provide Totalkare with such information and materials as Totalkare may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
9.1.5 as necessary prepare the Customer’s premises for the supply of the Services;
9.1.6 comply with all applicable laws, including health and safety laws as regards it receipt of the services and the admission of any Totalkare staff;
9.1.7 keep all materials, equipment, documents and other property of Totalkare (Totalkare Materials) at the Customer’s premises in safe custody at its own risk, maintain Totalkare Materials in good condition until returned to Totalkare, and not dispose of or use Totalkare Materials other than in accordance with Totalkare’s written instructions or authorisation; and
9.1.8 comply with any additional obligations of the Customer as set out in the Service Specification and/or the Products Specification.
9.2 If Totalkare’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
9.2.1 without limiting or affecting any other right or remedy available to it, Totalkare shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Totalkare’s performance of any of its obligations;
9.2.2 Totalkare shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Totalkare’s failure or delay to perform any of its obligations as set out in this clause 9.2; and
9.2.3 the Customer shall reimburse Totalkare on written demand for any costs or losses sustained or incurred by Totalkare arising directly or indirectly from the Customer Default.
10. Charges and payment
10.1 The price for Products shall be the price set out in Totalkare’s acknowledgment of Order or as otherwise otherwise set out in writing by Totalkare and agreed by the parties.
10.2 Unless otherwise agreed the price of the Products shall be exclusive of all costs and charges of packaging, insurance, transport of the Products, which shall be invoiced to and payable by the Customer.
10.3 The charges for Services shall be calculated on the basis set out in the Totalkare service contract form or as otherwise set out in writing by Totalkare and agreed by the parties.
10.4 Totalkare shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Totalkare engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Totalkare for the performance of the Services, and for the cost of any materials.
10.5 Totalkare reserves the right to increase the price of the Products, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Products to Totalkare that is due to:
10.5.1 any factor beyond the control of Totalkare (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
10.5.2 any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Products Specification; or
10.5.3 any delay caused by any instructions of the Customer in respect of the Products or failure of the Customer to give Totalkare adequate or accurate information or instructions in respect of the Products.
10.6 In respect of the sale of Products, unless otherwise agreed (and subject to clause 5 (Storage of Products) where applicable), Totalkare shall invoice the Customer on or at any time after dispatch of the Products (or on or at any time after notifying the Customer that Products are ready for collection, as the case maybe). In respect of the provision of Services, Totalkare shall render invoices on the agreed basis for the Services in issue (such as monthly, annually or on completion of the Services, as the case maybe).
10.7 Unless differing payment terms have been agreed (including payment on a pro-forma basis when required by Totalkare) the Customer shall pay each invoice submitted by Totalkare within 30 days of the date of the invoice in full and in cleared funds to a bank account nominated in writing by Totalkare. Time for payment shall be of the essence of the Contract.
10.8 All amounts payable by the Customer 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 Totalkare to the Customer, the Customer shall, on receipt of a valid VAT invoice from Totalkare, pay to Totalkare such additional amounts in respect of VAT as are chargeable on the supply of the Services or Products at the same time as payment is due for the supply of the Services or Products.
10.9 If the Customer fails to make a payment due to Totalkare under the Contract by the due date, then, without limiting Totalkare’s remedies under clause 15, 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 10.9 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%.
10.10 All amounts due under the Contract shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11. Intellectual property rights
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services and subsisting in the Products shall, as between Totalkare and the Customer be owned by Totalkare.
12. Cancellation and amendment
12.1 If the Customer wishes to cancel the Contract then the Customer must make a formal written request to Totalkare to do so. Totalkare will then consider the request to cancel the Contract but Totalkare shall retain an absolute discretion as to whether or not to agree to the same. If Totalkare in its absolute discretion agrees to cancel the Contract then it shall notify the Customer accordingly in writing and any such agreement by Totalkare to cancel the Contract shall be conditional upon the Customer recompensing Totalkare, on demand, in respect of any losses, costs, expenses or sums suffered or incurred by Totalkare (including any cancellation related costs or charges that Totalkare has to pay to any third party) in relation to the cancelled Contract (“Cancellation Costs”). Further Totalkare shall be entitled to retain in full any deposit paid by the Customer in relation to the Contract and where the amount of the deposit is less than the amount of the Cancellation Costs, the Customer shall forthwith on demand pay the outstanding balance to Totalkare.
12.2 If the Customer wishes to vary the Contract then the Customer must make a formal written request to Totalkare to do so. Totalkare will then consider the request to vary the Contract but Totalkare shall retain an absolute discretion as to whether or not to agree to the same. If Totalkare in its absolute discretion agrees to vary the Contract then it shall notify the Customer accordingly in writing and any such agreement by Totalkare to vary shall, without limitation, be conditional upon:
12.2.1 the Customer recompensing Totalkare, on demand, in respect of any losses, costs, expenses or sums suffered or incurred by Totalkare (including any variation related costs or charges that Totalkare has to pay to any third party) in consequence of the Contract being varied;
12.2.2 Totalkare amending the Contract price accordingly; and
12.2.3 any dates quoted for delivery of the Products or performance of the Services being extended accordingly by Totalkare.
13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or customers of the other party except as permitted by clause 13.2.
13.2 Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the 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 13; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any 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.
14. LIMITATION OF LIABILITY
14.1 Nothing in these Conditions shall limit or exclude Totalkare’s liability for:
14.1.1 death or personal injury caused by its negligence;
14.1.2 fraud or fraudulent misrepresentation; and
14.1.3 in respect of any other matter where liability cannot be excluded or limited by law.
14.2 Subject to clause 14.1 Totalkare shall under no circumstances whatever be liable to the Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
14.2.1 any loss of profits, sales, business, revenue or goodwill (whether any of the foregoing are direct or indirect loss); and
14.2.2 any indirect, special or consequential loss.
14.3 Subject to clauses 14.1 and 14.2 Totalkare’s total liability to the Customer in respect of all other claims arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the sum of £500,000.
14.4 Nothing in these Conditions shall detract from the Customer’s duty to mitigate its loss. This clause 14 shall survive termination of the Contract.
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
15.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 10 days after receipt of notice in writing to do so;
15.1.2 the other party 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;
15.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
15.1.4 the other party’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.
15.2 Without affecting any other right or remedy available to it, Totalkare 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.
15.3 Without affecting any other right or remedy available to it, Totalkare may suspend the supply of Services or all further deliveries of Products under the Contract or any other contract between the Customer and Totalkare 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 15.1.2 to clause 15.1.4, or Totalkare reasonably believes that the Customer is about to become subject to any of them.
16. Consequences of termination
16.1 On termination of the Contract the Customer shall immediately pay to Totalkare all of Totalkare’s outstanding unpaid invoices and interest; and in respect of Services and Products supplied but for which no invoice has been submitted, Totalkare shall be entitled to submit an invoice, which shall be payable by the Customer immediately on receipt.
16.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
17.1 Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
17.2 Assignment and other dealings. Totalkare may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Totalkare.
17.3 Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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). Any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; and (b) if sent by pre-paid first-class post or by a next working day delivery service at 9.00 am on the second Business Day after posting. 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.
17.4 Severance. 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.
17.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the 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.
17.6 Entire agreement. The 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 (subject to clause 2.7), relating to its subject matter. Each party acknowledges that in entering into the 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 the Contract.
17.7 Third party rights. 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. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9 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.
18.1 Certain products or services may be available online through the Totalkare’s website. These products or services shall be subject to Totalkare’s Online Terms & Conditions for the supply of Products and Services.
Version September 2021