By accessing this web site, you are agreeing to be bound by these web site Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this web site are protected by applicable copyright and trade mark law.
2. Use License
Permission is granted to temporarily download one copy of the materials (information or software) on Tyson Lighting’s web site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
The materials on Tyson Lighting’s web site are provided “as is”. Tyson Lighting makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, Tyson Lighting does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.
In no event shall Tyson Lighting or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on Tyson Lighting’s Internet site, even if Tyson Lighting or a Tyson Lighting authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
5. Revisions and Errata
The materials appearing on Tyson Lighting’s web site could include technical, typographical, or photographic errors. Tyson Lighting does not warrant that any of the materials on its web site are accurate, complete, or current. Tyson Lighting may make changes to the materials contained on its web site at any time without notice. Tyson Lighting does not, however, make any commitment to update the materials.
Tyson Lighting has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Tyson Lighting of the site. Use of any such linked web site is at the user’s own risk.
8. Governing Law
Any claim relating to Tyson Lighting’s web site shall be governed by the laws of the State of Manchester without regard to its conflict of law provisions.
General Terms and Conditions applicable to Use of a Web Site.
1.1 Definitions. In these Conditions, the following definitions apply:
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 set out in clause 2.1
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.3.
Contract: the contract between Tyson and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from Tyson as detailed in the Quotation or Purchase Order.
Deliverables: designs, drawings and other documents created by Tyson as per the Customer’s requirements which may include lighting design drawings, luminaire schedule and bespoke luminaire drawings.
Force Majeure Event: has the meaning given to it in clause 16.1.
Goods: the goods (or any part of them) set out in the Quotation or Purchase Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and Tyson.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
Normal Business Hours: means 8.30am till 5.00pm on a Business Day.
Onsite Support: means attendance at the Site Address by one Tyson employee who shall:
(a) provide such information relating to the Goods and Services as the Customer or the Customer’s sub-contractors may reasonably request to aid the Customer or the Customer’s sub-contractors with the installation of the Goods;
(b) oversee the installation of the Goods.
Onsite Support does not include:
(a) the installation of the Goods;
(b) the construction of component based Goods (including LED lighting and remote drivers);
(c) the connection of the Goods to the electrical supply; and
(d) any work that would typically, in the opinion of the reasonable person, be completed by an electrical contractor.
Onsite Support Fee: the fee, as set out in the Quotation, charged by Tyson for the provision by Tyson to the Customer of Onsite Support.
Order: as defined in clause 2.1.
Purchase Order: the order provided by the Customer to Tyson detailing the Goods and / or Services to be provided and the price of those Goods and / or Services.
Quotation: the quotation provided to the Customer by Tyson detailing the Goods and / or Services to be provided and the price of those Goods and / or Services
Scope of Work: the written description of the Services (if any) to be provided by Tyson to the Customer.
Services: the lighting design services and the associated Deliverables, to be supplied by Tyson to the Customer as set out in the Scope of Work.
Services Fee: the cost of the provision of the Services to be supplied by Tyson to the Customer as detailed in the Quotation.
Site Address: has the meaning set out in clause 4.2.
Tyson: Tyson Lighting Limited registered in England and Wales with company number 00682184 at registered address Gibson House, Walpole Street, Blackburn, BB1 1DB.
1.2 Construction. In these Conditions, the following rules apply:
(a) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(b) a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 This Contract shall come into existence by either:
(a) acceptance by email, fax or post by the Customer of the Quotation (the Quotation constitutes an offer by Tyson to the Customer for the purchase of the Goods and/or Services in accordance with these Conditions); or
(b) acceptance by email, fax or post by Tyson of the Purchase Order (the Purchase Order constitutes an offer by the Customer to Tyson for the purchase of the Goods and/or Services in accordance with these Conditions);
2.2 This Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Tyson which is not set out in the Contract.
2.3 Any samples, drawings, descriptive matter or advertising issued by Tyson and any descriptions of the Goods or illustrations or descriptions of the Services contained in Tyson’s catalogues or brochures 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 or have any contractual force.
2.4 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 trade, custom, practice or course of dealing.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.6 The Customer shall not be entitled to cancel an Order except with the written consent of Tyson and provided that the Customer shall indemnify Tyson 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 and other professional costs and expenses) suffered or incurred by Tyson in connection with such cancellation.
2.7 Any typing, clerical error or omission in any sales literature, catalogue, quotation, price list, acceptance of offer, invoice or other document or information issued by Tyson shall be subject to correction without notice to the Customer and without liability to Tyson.
3.1 The Goods are described in the Quotation.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify Tyson 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 and other professional costs and expenses) suffered or incurred by Tyson in connection with any claim made against Tyson for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Tyson’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Tyson reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. Delivery of Goods
4.1 Tyson shall use reasonable endeavours to ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the product number of the Goods, where applicable).
4.2 Tyson shall deliver the Goods to the location set out in the Order or such other location as Tyson may approve, in writing, to the Customer (Site Address). Delivery of the Goods shall be completed on the Goods’ arrival at the Site Address.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Tyson shall have no liability to the Customer for any delay in delivery of the Goods (or any part of the Goods).
4.4 If Tyson fails to deliver the Goods within one month of the quoted date for delivery, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Tyson shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer’s failure to provide Tyson with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.5 Tyson may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.6 Notification of damage caused to the Goods in transport or any shortages must be advised to Tyson in writing within three days of receipt of the Goods and in any event before installation of the Goods. Delivery notes signed “unexamined” will not be accepted by Tyson. In any event, the Customer shall be liable for all loss or damage caused by the Customer including its failure to adhere to any instructions relating to the Goods advised by Tyson.
4.7 Goods may only be returned to Tyson subject to Tyson’s written consent and a payment by the Customer to Tyson of 40% of the Order value. Goods returned without written consent will be refused. Carriage costs for returns shall be borne by the Customer. Goods must be returned in their original packaging in the same condition as when they were delivered to the Site Address, without having been installed. If the Goods are found, in Tyson’s opinion, not to be in the same condition, the Customer shall be liable for the full sale price of the Goods.
4.8 Unless otherwise agreed by Tyson, acting in its discretion, any samples submitted by Tyson must be returned upon request and in any event within 4 weeks from the date the sample(s) in question were sent. Tyson shall be entitled to charge the Customer any amount up to the full sell at price for any samples that are damaged or not returned.
4.9 If the Customer fails to take delivery of the Goods or delivery is refused by the Customer or the Customer’s representative or sub-contractor, the Customer shall be liable for all costs associated with re-Delivery.
5. Quality of Goods
5.1 Tyson warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing during the warranty period immediately on discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) Tyson is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by Tyson) returns such Goods to Tyson’s place of business at the Customer’s cost,
Tyson shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Tyson shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow Tyson’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of Tyson following any drawing, design or Goods Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Tyson;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, Tyson shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 Insofar as the Goods comprises or contains goods or components which were not manufactured or produced by Tyson, the Customer shall be entitled only to such warranty or other benefit as Tyson has received from the manufacturer or third party supplier.
5.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Tyson under clause 5.2.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Tyson receives payment in full (in cash or cleared funds) for the Goods and any other goods that Tyson has supplied to the Customer 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:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Tyson’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Tyson’s behalf from the date of delivery;
(d) notify Tyson immediately if it becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(e); and
(e) give Tyson such information relating to the Goods as Tyson may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Tyson receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as Tyson’s agent;
(b) title to the Goods shall pass from Tyson to the Customer immediately before the time at which resale by the Customer occurs;
(c) the Customer shall hold the proceeds of such sales to the account of Tyson to the amount the Customer is indebted to Tyson; and
(d) the Customer agrees that under this contract it assigns the benefit of any claim it may have against a third party to Tyson.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(e), then, without limiting any other right or remedy Tyson may have:
(a) the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
(b) Tyson may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Supply of Services
7.1 Tyson shall supply the Services to the Customer in accordance with the Scope of Work in all material respects.
7.2 For the avoidance of doubt if the Customer does not include Services as part of its Order, Tyson shall be responsible solely for the supply of Goods and shall be under no obligation to provide any Services.
7.3 Tyson shall use reasonable endeavours to meet any performance dates for the Services specified by Tyson in writing, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.4 Tyson shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Tyson shall notify the Customer in any such event.
8. Supply of Onsite Support
8.1 If in Tyson’s opinion, acting reasonably, the Goods being supplied are of such bespoke design that Onsite Support will be required to educate and oversee the installation of the Goods by the Customer (or any of the Customer’s sub-contractors), Tyson shall recommend that the Customer purchases the Onsite Support Fee. Tyson shall advise, having regard to the nature of the job in question and the Goods and Services being supplied, the number of days Onsite Support shall be required.
8.2 If the Customer does not follow the recommendation of Tyson, in accordance with clause 8.1 above, clause 8.5 shall apply.
8.3 The following Onsite Fees apply:
(a) £500 per day if the Customer notifies Tyson of its requirement for Onsite Support prior to placing the Order;
(b) £525 per day if the Customer notifies Tyson of its requirement for Onsite Support after placing the Order but two weeks or more before the date the Onsite Support is required;
(c) £550 per day if the Customer notified Tyson of its requirement for Onsite Support within two weeks of the date such support is required.
8.4 The Onsite Support Fee does not include time spent onsite by Tyson outside Normal Business Hours, such time shall be charged at a rate of £75 per hour (pro-rated and rounded down to the nearest quarter hour).
8.5 The Customer accepts and acknowledges that Tyson needs reasonable notice of the requirement of Onsite Support so that it can schedule for a Tyson representative to be onsite. If, therefore, at any time after the Customer has placed its Order it then decides that it would in fact like to order Onsite Support, Tyson cannot guarantee that a Tyson representative will be available on the dates specified by the Customer
8.6 For the avoidance of doubt if the Customer does not purchase any Onsite Support Tyson shall be under obligation to attend the Site Address other than to deliver the Goods.
9. Customer’s obligations
9.1 The Customer shall:
(a) ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
(b) co-operate with Tyson in all matters relating to the Services;
(c) provide Tyson, its employees, agents, consultants and subcontractors, with access to the Site Address and other facilities as reasonably required by Tyson to provide the Services;
(d) provide Tyson with such information and materials as Tyson may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Site Address for the delivery of the Goods and/or supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) procure that it’s contractors highlight to Tyson, in writing, any discrepancies or raise any queries in relation to the Goods as soon as practicable following delivery and in any event before installation;
(h) procure that the Goods are installed in accordance with Tyson’s and/or any manufacturer’s instructions or guidance supplied with the Goods or notified to the contractor by Tyson;
(i) procure that its contractors run all tests and demonstrations, immediately upon installation (and in any event prior to handover of the Site Address to the end user) of any lighting control system to ensure such system is in full working order and to outline the system’s full capabilities to the Customer and to Tyson;
(j) ensure, or procure that its contractor ensures, that all structures and electrical fixing points support and are compatible with the Goods;
(k) review any design or lighting scheme drawings immediately upon receipt and notify Tyson as soon as practicably possible following such review of any issues relating to the building or co-ordination issues that may relate to the Goods being specified.
9.2 Tyson shall not be responsible for any loss arising out of or in connection with any failure by the Customer to comply with clause 9.1.
9.3 If Tyson’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) Tyson shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default;
(b) Tyson shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Tyson’s failure or delay to perform any of its obligations as set out in this clause 9; and
(c) the Customer shall reimburse Tyson on written demand for any costs or losses sustained or incurred by Tyson arising directly or indirectly from the Customer Default.
10.1 As part of the Services, Tyson shall provide the Customer with the Deliverables. If at any time the Customer wishes to request design alternations then, provided the design alterations requested are achievable (in Tyson’s opinion), Tyson shall record the details of the alterations requested in the Tyson change order document (Tyson Change Order Document) The Change Order Document will be issued to the Customer and the Customer’s signature of the document shall signify its approval of the proposed changes. Until Tyson has received approval by the Customer in writing of the Change Order Document no design changes will be implemented.
10.2 Any changes requested by the Customer following the date of approval shall be subject to such additional costs and lead time changes as Tyson shall notify the Customer of.
11. Charges and payment
11.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in Tyson’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of insurance, transport of the Goods. Prices due are those ruling at the date of despatch. The prices set out in the Quotation are valid for a period of 90 days.
11.2 The Services Fee and any Onsite Fee shall be detailed in the Order. Tyson shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Tyson engages in connection with the Services and Onsite Support including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Tyson for the performance of the Services, and for the cost of any materials.
11.3 Tyson reserves the right to:
(a) increase its standard fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any 12 month period. Tyson will give the Customer written notice of any such increase 3 months before the proposed date of the increase;
(b) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Tyson that is due to:
(i) any factor beyond the control of Tyson (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Tyson adequate or accurate information or instructions in respect of the Goods.
11.4 In respect of Goods and Services if the Customer has trade account with Tyson, Tyson shall invoice the Customer on or at any time after completion of delivery. Tyson reserves the right to request upfront payment by way of pro-forma invoice for Orders at the value of £20,000 or over.
11.5 If the Customer is making its first Order with Tyson it will be required to make complete payment upfront by way of a pro-forma invoice. Tyson shall invoice the Customer upon making the Order and the Goods shall not be despatched and Services not provided until such invoice is paid.
11.6 Once payment has been received for the Customer’s first order in accordance with clause 11.5, Tyson may at its discretion, upon completion of the credit application form (provided by Tyson to the Customer) set up a trade account for the Customer.
11.7 The Customer shall pay each invoice submitted by Tyson in accordance with clause 11.4:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Tyson, and time for payment shall be of the essence of the Contract.
11.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax (VAT). Where any taxable supply for VAT purposes is made under the Contract by Tyson to the Customer, the Customer shall, on receipt of a valid VAT invoice from Tyson, pay to Tyson 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.
11.9 If the Customer fails to make any payment due to Tyson under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
11.10 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Tyson may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Tyson to the Customer. Full invoices may not be withheld in the event of a discrepancy but the value of the discrepancy maybe deducted from the invoice. The Customer is not entitled to withhold payment for an invoice in the event that a part of that invoice or a previous invoice is under dispute. Tyson may at its discretion deduct the amount under dispute from the invoice.
12. Intellectual property rights
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services (including the Deliverables to the extent it has been created by Tyson) shall be owned by Tyson.
12.2 Tyson shall grant to the Customer a non-exclusive licence to use the Services in accordance with this agreement.
12.3 All Intellectual Property Rights in or arising out of or in connection with the Goods Specification (to the extent it is supplied by the Customer) shall be owned by the Customer.
12.4 The Customer shall grant to Tyson a non-exclusive licence to use the Goods Specification in accordance with this agreement.
12.5 If Tyson makes, devises, discovers or other acquires rights in any improvement, enhancement or modification to any Goods Specification or the relevant Goods method of manufacture (Improvement) Tyson shall notify the Customer in writing, giving details of the Improvement. The Intellectual Property Rights arising out of or in connection with any Improvement shall be owned by Tyson.
12.6 Information provided by Tyson to the Customer under clause 12.5 shall be subject to the provisions of 13.
12.7 Tyson shall grant to the Customer a non-exclusive licence to use any Improvement made, devised or discovered by Tyson.
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by Tyson, its employees, agents or subcontractors, and any other confidential information concerning Tyson’s business, its products and services which the Customer may obtain. The Customer shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Customer’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Customer may also disclose such of Tyson’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 13 shall survive termination of the Contract.
14. Limitation of liability:
14.1 Nothing in these Conditions shall limit or exclude Tyson’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
Subject to clause 14.1:
(e) Tyson shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(f) Tyson’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total cost of the Order.
14.2 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.3 This clause 14 shall survive termination of the Contract.
15.1 Without limiting its other rights or remedies, Tyson may terminate this Contract with immediate effect by giving written notice to the Customer if the Customer:
(a) commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) is unable to pay its debts as they fall due or admits inability to pay its debts or commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or enters into any compromise or arrangement with its creditors;
(c) 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 other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(d) the other party (being an individual) is the subject of a bankruptcy petition or order;
(e) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
15.2 Without limiting its other rights or remedies, Tyson may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
15.3 Without limiting its other rights or remedies, Tyson may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Tyson if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(e), or Tyson reasonably believes that the Customer is about to become subject to any of them.
15.4 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Tyson all of Tyson’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Tyson shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of Goods and Deliverables which have not been fully paid for. If the Customer fails to do so, then Tyson 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 not connected with this Contract. If at the time Tyson takes repossession of the Goods they have reduced in value, the Customer shall be liable to pay the difference between the price of the Goods and the value of the Goods at repossession. If Tyson is not able to repossess the Goods for any reason the Customer shall pay the difference between the price of the Goods and any amount received in respect of the Goods;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
16. Force majeure
16.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Tyson including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Tyson 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, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
16.2 Tyson shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
16.3 If the Force Majeure Event prevents Tyson from providing any of the Services and/or Goods for more than 4 weeks, Tyson shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
17. Export Terms
17.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause shall (subject to any special terms agreed in writing between Tyson and the Customer) apply, notwithstanding any other provision of these Conditions. The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties.
17.2 Unless otherwise agreed in writing between Tyson and the Customer, the Goods shall be delivered from the air or sea port of shipment or freight terminal and Tyson shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
17.3 The Customer shall be responsible for arranging for testing and inspection of the Goods at Tyson’s premises before shipment and the Customer being at liberty to test and inspect. Tyson shall have no liability for any claim in respect of any defect in the Goods which would be apparent on such inspection and which are made after shipment, or in respect of any damage during transit.
17.4 Where credit is extended payment of all amounts due to Tyson shall be made by irrevocable letter or credit opened by the Customer in favour of Tyson and confirmed by a bank in the U.K. acceptable to Tyson or, if Tyson has agreed in writing on or before acceptance of the Customer`s order to waive this requirement, by acceptance by the Customer and delivery to Tyson of a bill of exchange drawn on the Customer payable 30 days after sight to the order of Tyson at such branch of a bank in England as approved by Tyson as may be specified in the bill.
18.1 Tyson may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Tyson.
18.2 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
18.3 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by Tyson.
18.4 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.5 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).