OW Hospitality Limited
Terms and Conditions - Effective as of 29 September 2020
IT IS AGREED as follows:
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;
1.1.8 Data Protection Legislation means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a Party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a Party;
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;
1.1.16 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;
1.1.24 UK 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) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
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);
1.2.7 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision;
1.2.8 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; and
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.
2.2.1 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,
2.3 Any samples, drawings, descriptive matter or advertising issued by OWH and any descriptions of the Goods or illustrations or descriptions of the Services contained in OWH's Website, catalogues, brochures or any pre-Commencement Date communications with the Customer are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
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.
4.2 Any dates quoted for delivery of the Goods by OWH are approximate only, and the time of delivery is not of the essence. OWH shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide OWH with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
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).
4.4 If ten (10) Business Days after the day on which OWH notified the Customer that the Goods were ready for delivery and the Customer still has not accepted delivery of the Goods, OWH may resell or otherwise dispose of part or all of the Goods and charge the Customer for any shortfall in the price actually received against the price of the Goods agreed under the Contract.
4.5 OWH may deliver the Goods 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.
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.
5.4.1 the defect arises because the Customer failed to follow OWH's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods, including but not limited to the Warranty Conditions / Carpet Care Instructions as set out at schedule 1;
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.
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.
6.3.4 notify OWH immediately if it becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4; and
7.1 OWH shall supply any Services to the Customer in accordance with the Service Specification in all material respects unless such supply shall breach any Applicable Laws, and/or OWH deems any amendment will not materially affect the nature or quality of the Services.
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.
7.4 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;
8.1.4 provide OWH, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by OWH to provide the Services;
8.1.5 provide OWH with such information and materials as OWH may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.9 keep all materials, equipment, documents and other property of OWH (OWH Materials) at the Customer's premises in safe custody at its own risk, maintain OWH Materials in good condition until returned to OWH, and not dispose of or use OWH Materials other than in accordance with OWH's written instructions or authorisation;
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 If OWH'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):
8.2.1 without limiting or affecting any other right or remedy available to it, OWH shall have the right to suspend manufacture of the Goods or performance of the Services until the Customer remedies the Customer Default;
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;
8.2.3 OWH shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from OWH's failure or delay to perform any of its obligations as set out in this clause 8.2; and
9.2 The charges for any Services shall be as set out in the Quotation or otherwise agreed.
9.3.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Consumer Price Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Price Index as published in the United Kingdom by the Office of National Statistics;
(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;
time for payment shall be of the essence of the Contract.
9.6 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 OWH to the Customer, the Customer shall, on receipt of a valid VAT invoice from OWH, pay to OWH such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
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.
11.3 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).
12.1 Each Party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, 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 12.2.
12.2.1 to its employees, officers, representatives 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 12; and
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.
13.3 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.
13.5.1 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
14.1.1 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 a reasonable time after receipt of notice in writing to do so;
14.1.2 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;
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.
15.1.2 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
15.1.4 the Customer shall return all of OWH Materials and Goods which have been invoiced but not been fully paid for. If the Customer fails to do so, then OWH may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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.
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;
16.1.8 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.
18.1.2 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 OWH.
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.
18.2.2 Notices shall be deemed to have been received in the case of notice by hand, on delivery; by registered courier, on the day of delivery confirmed by the courier or the second day after the day of posting, whichever is earlier; and in the case of notice by email, on receipt.
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.
18.6.1 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, relating to its subject matter.
18.6.2 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. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
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.