OW Hospitality Limited
Terms and Conditions - Effective as of 29 September 2020
IT IS AGREED as follows:
1
DEFINITIONS AND INTERPRETATION
1.1
In these terms and conditions (these T&Cs):
1.1.2
Business
Day means a day other than a Saturday, Sunday or public holiday in England,
when banks in London are open for business;
1.1.3
Commencement
Date has the meaning given in clause 2.2;
1.1.4
Contract
means the contract between OWH and the Customer for the supply of Goods and/or
Services comprising the Quotation and these T&Cs (and any schedule to
them) or as otherwise may come into existence in accordance with clause 2.2;
1.1.7
Customer
means the person or firm who purchases the Goods and/or Services from OWH;
1.1.9
Force
Majeure Event has the meaning given to it in clause 16;
1.1.10
Goods
means the goods (or any part of them) set out in the Quotation;
1.1.13
Intellectual
Property Rights means patents, rights to inventions, copyright and
neighbouring and related rights, moral rights, trade marks and service marks,
business names and domain names, rights in get-up and trade dress, goodwill and
the right to sue for passing off or unfair competition, rights in designs,
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;
1.1.14
LCIA means the London Court of International Arbitration;
1.1.15
LCIA Rules means the LCIA procedural rules in
force at the Commencement Date;
1.1.16
OWH
means OW Hospitality Limited registered in England and Wales with company
number 4573581 whose registered office is at 5th Floor, 15
Whitehall, London SW1A 2DD and whose trading office is at Elgar House, Green
Street, Kidderminster DY10 1JF;
1.1.17
OWH
Materials has the meaning given in clause 8.1.9;
1.1.18
OWH's
Website means http://www.owhospitality.com/;
1.1.19
Party means each of OWH and the Customer,
together the Parties;
1.1.20
Pro-forma Invoice means the written
document prepared by OWH in accordance with the Quotation, which may include
the payment terms, charges, the delivery location, the Goods and the Services;
1.1.21
Quotation means a quotation issued by OWH
that sets out directly or by reference to other documents: the pricing, the
details of the Goods, the Goods Specification, any Services, the Service
Specification (if applicable) and other terms and conditions applicable to the
supply of Goods or provision of the Services;
1.1.22
Services
means any services to be supplied by or on behalf of OWH to the Customer as set
out in the Service Specification;
1.2.2
Words imparting the singular shall include the
plural and vice versa. Words imparting a gender include every gender and
references to persons include an individual, company, corporation, firm or
partnership;
1.2.3
All references in these T&Cs to clauses and
schedules are to the clauses and schedules to these T&Cs unless otherwise
stated;
1.2.4
The schedules form part of this Contract and
shall have effect as if set out in full in the body of this Contract. Any
reference to this Contract includes the schedules;
1.2.5
A person
includes a natural person, corporate or unincorporated body (whether or not
having separate legal personality);
1.2.6
A reference to a Party includes its personal
representatives, successors and permitted assigns;
1.2.9
A reference to writing or written
includes fax and email.
2.1
The issuance of a Quotation by OWH constitutes
an offer which remains open to acceptance by the Customer for a period of
thirty (30) days from its date of issue (unless OWH agrees to extend such
period) and OWH reserves the right to withdraw or amend a Quotation at any time
before it receives notice of the Customer's acceptance. OWH reserves the right to amend a Pro-forma
Invoice at any time.
2.2
A binding agreement shall be concluded on
the earlier of:
2.2.1
the Customer’s written acceptance of a
Quotation; or
2.2.2
the Customer’s written acceptance of a Proforma
Invoice; and/or
2.2.3
the Customer’s issuance of a purchase order or
other form of request, whether system generated or otherwise, to OWH which OWH
accepts in writing,
at which point and on which date the Contract
shall come into existence (Commencement
Date).
2.4
These T&Cs 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. For
the avoidance of doubt, no third party terms and conditions shall be deemed
accepted by OWH and any Contract or other agreement on terms other than as set
out herein will require the express written authority of two (2) or more
directors of OWH to be effective and binding on OWH.
2.5
In the event of and only to the extent of any
conflict or ambiguity between the Quotation, Proforma Invoice, the T&Cs and
any schedules thereto, the conflict shall be resolved in accordance with the
following order of precedence:
2.5.1
the Quotation;
2.5.2
the Proforma Invoice;
2.5.3
the T&Cs; and
2.5.4
the schedules.
4.1
Goods shall be delivered to the location and
risk shall pass in accordance with the Incoterms as specified in the Quotation.
In the event that no Incoterms are specified in the relevant Quotation, the
Goods shall be delivered by reference to the Ex Works Incoterms 2010.
4.3
If the Customer (or its carrier) fails to accept
delivery of the Goods within five (5) Business Days of OWH notifying the
Customer that the Goods are ready then, except where such failure or delay is
caused by a Force Majeure Event, OWH may, at its
discretion, store the Goods until the earlier of the delivery taking place or
ten (10) Business Days from the Customer failing to accept delivery of the
Goods, and charge the Customer for all related costs and expenses (including
insurance).
5.1
OWH warrants that on delivery and for the period
set out in schedule 1, the Goods shall:
5.1.1
conform in all material respects with the Goods Specification; and
5.1.2
be free from material defects in design, material
and workmanship,
in each case subject to the terms
and the limitations set out in the Warranty Conditions / Carpet Care
Instructions as set out in schedule 1. Please read these conditions and care
instructions carefully as a failure to follow them could result in these
warranties being void.
5.2
Please note that some variations in the Goods
and minor deviations from the Goods Specification are to be expected and do not
constitute Defects. Further details are set out in schedule 1.
5.3
Subject to clause 5.4, OWH shall, in accordance with the warranty care provision of the Warranty
Conditions / Carpet Care Instructions as set out in schedule 1, at its option,
repair or replace the defective Goods, or refund the price of the defective
Goods which has bee received by OWH if they do not comply with clause 5.1 and:
5.3.2
in the case of a non-conformity or latent defect
that was not reasonably apparent on visual
inspection and only becomes apparent during use, the Customer gives
notice in writing within a seven (7) days of discovery that some or all of the
Goods do not comply with the warranty set out in clause 5.1;
5.3.3
OWH is given a reasonable and timely opportunity
to examine such Goods;
5.3.5
the Customer (if asked to do so by OWH) returns
such Goods to OWH's place of business at the Customer's cost.
5.4
OWH shall not be liable for the Goods' failure
to comply with the warranty under clause 5.1 if:
5.4.3
the Customer alters or repairs such Goods
without the written consent of OWH;
5.5
Except as provided in this clause 5, OWH shall have no other liability to the Customer in respect of the
Goods' failure to comply with the warranty set out in clause 5.1.
5.6
The terms of these T&Cs shall apply to any repaired
or replacement Goods supplied by OWH.
6
TITLE AND RISK
6.1
Risk of loss of or damage to the Goods shall
pass to the Customer in accordance with the Incoterms as specified in the
relevant Quotation. In the event that no Incoterms are specified in the relevant
Quotation risk shall pass when the Customer's carrier loads the Goods at OWH's
premises (Ex-Works).
6.2
Title to the Goods shall not pass to the
Customer until OWH receives payment in full (in cleared
funds) for the Goods in respect of which payment has become due, in which case
title to the Goods shall pass at the time of payment of all such sums.
6.3
Until title to the Goods has passed to the
Customer, the Customer shall:
6.3.2
not remove, deface or obscure any identifying
mark or packaging on or relating to the Goods;
6.3.4
notify OWH immediately if it becomes subject to
any of the events listed in clause 14.1.2 to clause 14.1.4; and
7.2
OWH shall use its reasonable endeavours to meet
any performance dates for the Services specified in the Quotation and/or
Proforma Invoice, but any such dates shall be estimates only and time shall not
be of the essence for the performance of the Services.
7.3
OWH warrants to the Customer that the Services
will be provided using reasonable care and skill.
7.4
Where OWH is not providing Services or has
otherwise has provided details of a service provider who is then engaged
directly by the Customer or its contractors to install any Goods, OWH accepts
no liability for such service provider's actions or omissions.
8.1.2
ensure that the terms of the Quotation and/or
Proforma Invoice and any information it provides in the Service Specification
and the Goods Specification are complete and accurate;
8.1.3
co-operate with OWH in all matters relating to
the Services;
8.1.6
prepare, to the satisfaction of OWH, the
Customer's premises for the supply of the Services;
8.1.8
comply with all Applicable Laws, including
health and safety laws;
8.1.11
obtain at
its own cost such export and import licences and other consents in relation to
the Goods as are required. If required
by OWH, the Customer shall make those licences and consents available to the
OWH prior to shipment of the Goods.
8.2.2
OWH shall be entitled to rely on the Customer
Default to relieve OWH from the performance of any of its obligations in each
case, to the extent the Customer Default prevents or delays OWH's performance
of any of its obligations;
9.1.1
shall be the price set out in the Quotation; and
9.2
The charges for any Services shall be as set
out in the Quotation or otherwise agreed.
9.3
OWH reserves the right to:
(b)
changes to the Applicable Laws, including,
without limitation, changes to laws or regulations which require any changes to
the specification or certification of any Goods;
9.5
The Customer shall pay each invoice submitted by
OWH:
9.5.2
in full and in cleared funds to a bank account
nominated in writing by OWH, and
time for payment shall be of the essence of the Contract.
9.7
If the Customer fails to make a payment due to
OWH under the Contract by the due date, then, without limiting OWH's remedies
under clause 14 (Termination), 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 9.7 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
INTELLECTUAL PROPERTY RIGHTS (AND CUSTOMER
INDEMNITY)
10.2
The Customer grants OWH a fully paid-up,
perpetual, irrevocable, non-exclusive, sub-licensable and royalty-free licence
to any Intellectual Property Rights in (and to copy and modify) any materials
provided by the Customer to OWH for the for the purpose of providing the Goods
and any Services to the Customer. For the avoidance of doubt, the Customer
agrees that this licence permits OWH to sell any Goods pursuant to clause 4.4
and subsequently sub-licence any of the licensed Intellectual Property Rights
required in relation to or connection with the sale of the Goods and their use
by a purchaser.
10.3
Where the Customer supplies bespoke designs for
the Goods under clause 10.4,
OWH will convert these designs to create a “Carpet Design File” to enable
production of the Goods. Intellectual
Property Rights in the Carpet Design File vests in OWH.
10.4
The Customer shall indemnify OWH 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 professional costs and expenses) suffered or incurred by OWH arising
out of or in connection with:
10.4.1
any claim made against OWH for actual or alleged
infringement of a third party's Intellectual Property Rights; and
10.4.2
any claim for damage to property or injury to
any person;
in each case to the extent
arising from the use of any designs, drawings or specifications provided to OWH
by the Customer in respect of the Goods, including but not limited to the Goods
Specification. This clause 10.4 shall survive termination of the Contract.
11.1
Both parties will comply with all applicable
requirements of the Data Protection Legislation.
11.3
Either Party may, at any time on not less than
30 days' notice, revise this clause 11 by replacing it with any applicable Controller to Processor standard
clauses or similar terms forming part of an applicable certification scheme
(which shall apply when replaced by attachment to the Contract).
12.2
Each Party may disclose the other Party's
confidential information:
THE CUSTOMER'S ATTENTION
IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1
The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the
Contract including liability in contract, tort (including negligence),
misrepresentation, restitution or otherwise.
13.2.1
death or personal injury caused by negligence;
13.2.2
fraud or fraudulent misrepresentation;
13.3
Subject to clause 13.2, OWH's total liability to the Customer shall not exceed one hundred percent (100%) of the total sums paid by the Customer
and/or payable under the Contract in respect of Goods and Services actually
supplied by OWH, whether or not invoiced to the Customer and the Customer
acknowledges that without this limitation OWH's prices would have been higher.
13.4
Subject to clause 13.2, the following types of loss are wholly
excluded:
13.4.1
loss of actual or projected profits;
13.4.2
loss of sales or business;
13.4.3
loss of agreements or contracts;
13.4.4
loss of anticipated savings;
13.4.5
loss of use or corruption of software, data or
information;
13.4.6
loss of or damage to goodwill; and
13.4.7
indirect or consequential loss.
13.5
OWH shall have no liability in respect of:
13.5.1
any failure of the Goods to fit their intended
location which arises from any inaccuracy in any measurements provided by or on
behalf of the Customer; or
13.5.2
any matters relating to the installation of the
Goods unless OWH is dealing with installation.
13.6
OWH has given commitments as to compliance of
the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, terms implied by Applicable Law or
custom and practice or arising out of any prior dealings between the parties
relating to the quality of Goods or their fitness for any purpose are excluded
from the Contract to the greatest extent possible.
13.7
This clause 13 shall survive termination of the Contract.
14
TERMINATION &
SUSPENSION
14.2.1
the Customer fails to pay any amount due under the Contract
on the due date for payment; or
14.2.2
there is a change of Control of the Customer.
14.3
Without affecting any other right or remedy
available to it, OWH may suspend the supply of Services or all further
deliveries of Goods under the Contract or any other contract between the
Customer and OWH 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 14.1.2 to clause 14.1.4, or OWH reasonably believes that the Customer is about to become
subject to any of them.
15
CONSEQUENCES OF TERMINATION
15.1
On termination of the Contract:
15.1.2
in respect of any Goods and/or Services in the process of
manufacture (but not yet delivered) and/or partially supplied (as applicable),
the Customer shall be liable to OWH for all costs reasonably incurred by OWH in
fulfilling the Contract up until the date of deemed receipt of the termination
(which will be the Contract the price of any Goods which have been completed
but not delivered);
15.1.3
in respect of Services and Goods supplied but
for which no invoice has been submitted, OWH shall submit an invoice, which
shall be payable by the Customer immediately on receipt; and
16.1
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 results from events,
circumstances or causes beyond its reasonable control (a Force Majeure Event)
including but not limited to:
16.1.1
acts of God;
16.1.2
epidemic and pandemic;
16.1.3
storms;
16.1.4
floods
16.1.5
riots;
16.1.6
fire;
16.1.7
sabotage;
16.1.8
civil commotion or civil unrest;
16.1.9
interference by civil or military authorities;
16.1.10 acts
of war;
16.1.11 armed
hostilities or national or international calamity;
16.1.12 acts
of terrorism; or
16.1.13 failure
of energy sources.
16.2
In such circumstances as set out at clause 16.1, the affected Party shall be entitled to a commensurate extension of
the time for performing such obligations. If the period of delay or
non-performance continues for forty-five (45) days, the Party not affected may
terminate the Contract by giving fourteen (14) days' written notice to the
affected Party.
17.1
All
disputes arising in relation to these T&Cs shall be referred to senior
officers of each Party who shall meet (in person or virtually) and attempt to
settle the dispute between themselves in good faith within 30 days.
17.2
If such
officers fail to resolve the dispute within 30 days, the dispute shall be
referred to and finally resolved by arbitration under the LCIA Rules, which
LCIA Rules are deemed to be incorporated by reference into this clause.
17.3
The
language to be used in the arbitration shall be English.
17.4
In any
arbitration commenced pursuant to this clause,
17.4.1
the number
of arbitrators shall be one;
17.4.2
the seat,
or legal place, of arbitration shall be London; and
17.4.3
the
governing law of the arbitration agreement shall be the law of England and
Wales.
17.5
Each Party irrevocably agrees that the arbitral
tribunal established in accordance with this clause 17 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, its subject
matter or formation, and the
application and interpretation of this arbitration agreement.
18
GENERAL
18.1
Assignment and other dealings
18.2.1
Any notice under the Contract shall be in
writing and sent (i) by registered courier to the correspondence address of the
Party set out in the Quotation or (ii) sent by email to the address set out in
the Quotation. Such addresses may change from time to time as notified by a
Party to the other Party and any notices shall be sent to the new addresses.
18.2.3
Any legal notices issued in relation to the
Contract will comply with the applicable rules and procedures governing the
legal proceedings.
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 or part-provision of the Contract is
deemed deleted under this clause 18.3 the parties shall negotiate in good faith to agree a replacement
provision that, to the greatest extent possible, achieves the commercial result
of the original provision.
A waiver of any right or
remedy under the Contract or by law is only effective if given in writing and
shall not be deemed a waiver of any subsequent right or remedy. A failure or
delay by a Party to exercise any right or remedy provided under the Contract or
by law shall not constitute a waiver of that or any other right or remedy, nor
shall it prevent or restrict any further exercise of that or any other right or
remedy. No single or partial exercise of any right or remedy provided under the
Contract or by law shall prevent or restrict the further exercise of that or
any other right or remedy.
Nothing in the Contract is
intended to, or shall be deemed to, establish any partnership or joint venture
between the Parties, constitute either Party the agent of the other, or
authorise either Party to make or enter into any commitments for or on behalf
of the other Party.
Except as set out in these
T&Cs, no variation of the Contract shall be effective unless it is agreed
in writing and signed by the Parties (or their authorised representatives).
The Contract shall be
governed by and construed in accordance with the law of England and Wales.