1.1. The terms and conditions contained in this Agreement form the contract between KeepMe Lifestyle Ltd and the Client for the provision of Goods and/or Services to the Client (the “Works”). The terms and conditions supersede any previously issued terms and conditions of supply.
1.2. No terms or conditions endorsed on, delivered with, or contained in the Client’s Order, confirmation of Order, specification or other document will form part of the contract between KeepMe Lifestyle Ltd and the Client.
1.3. No variation of this Agreement will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of KeepMe Lifestyle Ltd and by a duly authorised signatory on behalf of the Client.
1.4. An Order will be deemed to be an offer to purchase Goods and/or Services on the terms of this Agreement.
1.5. Orders are not binding until accepted by KeepMe Lifestyle Ltd in writing.
1.6 Marketing and other descriptive matter relating to Goods or Services are illustrative only and do not form part of this Agreement. The Client agrees that, in placing an Order, it has not relied on any representation or statement by KeepMe Lifestyle Ltd not set out in this Agreement.
In this Agreement, unless otherwise provided, the following word shall have the following definitions:
Contract Price: means the price for the Goods and /or Services and the related costs, fees and expenses referred to in clause 5
Force Majeure: means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement
Goods: means the goods (and any related goods and other deliverables) to be supplied by KeepMe Lifestyle Ltd to the Client
Intellectual Property Rights: means copyright, patents, rights in confidential information, Know-how, trade secrets, trade marks, design rights, rights in get-up and all similar rights of whatever nature and, in each case whether registered or not, whether vested, contingent or future and wherever existing
Order: means the Client’s order, on the terms of this Agreement, for the Goods and/or Services
Services: means the services (and any related services) relating to the Goods to be supplied by KeepMe Lifestyle Ltd to the Client
Works: has the meaning set out in clause 1.1
The Client shall be solely responsible for providing KeepMe Lifestyle Ltd with all necessary information in connection with its goods and/or services, its market and generally. KeepMe Lifestyle Ltd will not be responsible for any shortcomings in such information, or for acting in response to the information with which it has been provided.
Any date specified by KeepMe Lifestyle Ltd for the completion of the Works is an estimate; whilst every effort will be made to meet with the date specified, this is not guaranteed by KeepMe Lifestyle Ltd.
5.1. The Contract Price will incorporate the fees and bought-in costs quoted by KeepMe Lifestyle Ltd. KeepMe Lifestyle Ltd will charge additional fees for modifications requested by the Client and any associated discussions, plus its reasonable expenses, travelling and accommodation expenses, courier costs and all other out-of-pocket expenses.
5.2. The Contract Price is exclusive of Value Added Tax and any other chargeable taxes.
5.3. Any estimate of the whole or any part of the Contract Price is given in good faith and shall be treated as an estimate only unless and until it is specifically agreed in writing by KeepMe Lifestyle Ltd.
5.4. Quotations issued by KeepMe Lifestyle Ltd are valid for two calendar months from issue. They do not constitute an offer to sell or supply. If the Client wishes to purchase Goods or Services the subject of a quotation, it will need to place an Order.
5.5. The Client shall pay for the entire Order, upon acceptance of KeepMe Lifestyle Ltd estimate and prior to the commencement of manufacture or supply of the Goods and/or Services. Alternatively the Client can apply for a credit line which is subject to satisfactory credit checks. KeepMe Lifestyle Ltd may set and vary credit limits from time to time and withhold all further supplies if the Client exceeds such credit limit.
5.6. Unless otherwise agreed, payment of the Contract Price shall be made in pounds sterling within 30 days of delivery of each applicable invoice. If the Client fails to make payment in full within that period of 30 days, KeepMe Lifestyle Ltd shall, without limiting its other rights, be entitled to charge interest on the outstanding balance at a rate three percentage points above National Westminster Bank plc base rate in force from time to time, the interest being added to the principal amount of the invoice outstanding on the last day of the month following the date of the invoice. Interest will accrue on a daily basis and apply from the due date for payment of each invoice until actual payment in full, whether before or after judgment.
5.7. In addition, KeepMe Lifestyle Ltd shall be entitled to suspend any further Works ordered by the Client, whether under the same or any other Order.
5.8. In cases where KeepMe Lifestyle Ltd holds the Client’s stock in storage, KeepMe Lifestyle Ltd reserves the right to dispose of this stock in cases where the Client has failed to pay within 30 days of the due date of invoices. Irrespective if the outstanding invoices relate to the goods / services in question, or another Order.
5.9. Where the Client requires a purchase order number to be quoted on invoices raised by KeepMe Lifestyle Ltd then work will not be commenced by KeepMe Lifestyle Ltd until a purchase order document and number has been received by KeepMe Lifestyle Ltd in accordance with the agreed price estimate.
6. Project Management
6.1. Where KeepMe Lifestyle Ltd is acting as project manager for the Client in respect of any particular project or assignment, it will use its reasonable endeavours to introduce to the Client suppliers appropriate to the services required by the Client. However, whilst KeepMe Lifestyle Ltd will assist the Client in the negotiation of terms between the Client and any such suppliers, KeepMe Lifestyle Ltd will not be responsible for the terms finally agreed between the Client and such suppliers.
6.2. KeepMe Lifestyle Ltd will not in any circumstances be liable for any claim or complaint that the Client may have against or in respect of any supplier introduced byKeepMe Lifestyle Ltd to the Client.
7. Intellectual Property Rights
7.1. Intellectual Property Rights in any Works created by KeepMe Lifestyle Ltd on the instructions of the Client will belong to KeepMe Lifestyle Ltd. For the avoidance of doubt this includes the Intellectual Property Rights in any Works which may be the subject of repeat or supplemental Orders for Goods or Services made by the Client.
7.2. KeepMe Lifestyle Ltd grants to the Client a royalty-free licence, revocable only for breach by the Client of the terms of this Agreement, to use the intellectual Property Rights in the final product of such Works when the full Contract Price for the Works has been paid. The licence shall extend to geographical and/or subject areas agreed between KeepMe Lifestyle Ltd and the Client in writing.
7.3. The Client:
7.3.1 will not use the Intellectual Property Rights for any other purpose other than as set out in clause 7.2
7.3.2 will not modify the Intellectual Property Rights
7.3.3 may not assign, sublicense or deal with the Intellectual Property Rights
7.4. KeepMe Lifestyle Ltd will retain the Intellectual Property Rights in any Works created by it in the course of carrying out the Works but not forming part of the final product of the Works as applied commercially by the Client.
7.5. KeepMe Lifestyle Ltd shall take all reasonable care to ensure that no work proposed or submitted infringes any existing United Kingdom patent, design right, registered design, trade mark, or other intellectual property right of a third party. It does not warrant or give any representation that any such work will not infringe any such right. KeepMe Lifestyle Ltd shall be under no liability to the Client for any actions, costs, claims or demands suffered by the Client in respect of any infringement of any third party patent, trademark, trade name, registered design, or device for the protection of intellectual property, or in respect of passing-off, save insofar as such infringement is due to the negligence of KeepMe Lifestyle Ltd.
7.6. All rights and interest in any patent, patentable invention or process, design right or registered design arising from the Works will be owned by and retained by KeepMe Lifestyle Ltd unless specifically agreed otherwise with the Client. KeepMe Lifestyle Ltd may at its own option and expense file or make any necessary application to protect such rights.
8. Indemnity by the Client
8.1. The Client shall indemnify and keep indemnified KeepMe Lifestyle Ltd in respect of all financial liability (including professional costs, damages and accounts of profits) arising out of any claims made against KeepMe Lifestyle Ltd alleging infringement of any third party intellectual property rights if such claim arises from the use of information, inventions, ideas, designs, artwork, copy or other material provided by the Client.
8.2. If the Client cancels any contract with KeepMe Lifestyle Ltd for the performance of Works, the Client shall compensate KeepMe Lifestyle Ltd for all losses that KeepMe Lifestyle Ltd may suffer arising from such cancellation. For the avoidance of doubt (and without limiting the general scope of this obligation), those losses will include the payment of charges due to sub-contractors and suppliers services and goods ordered specifically for the purpose of performance of the cancelled contract.
9.1 The Client will not use for its own benefit nor disclose to any third party any technical know-how, information relating to customers, products, plans or otherwise to the business affairs of KeepMe Lifestyle Ltd or other confidential information owned by KeepMe Lifestyle Ltd (“Confidential Information”) which may come into the Client’s possession, except insofar as such confidential information enters into the public domain or comes into its possession from a third party source not itself under any duty of confidence towards KeepMe Lifestyle Ltd.
9.2. KeepMe Lifestyle Ltd undertakes not to misuse or to disclose to third parties any Confidential Information relating to the Client. This undertaking does not extend to information which is in the public domain or which KeepMe Lifestyle Ltd obtains from a third party source.
9.3. Subject to the foregoing undertaking, KeepMe Lifestyle Ltd will not be bound by any obligation of exclusivity to the Client except to the extent that it specifically agrees in writing with the Client.
10. Obligations of the Client
10.1. The Client will:
10.1.1. place all Orders on the terms of this Agreement and ensure that their contents are complete and accurate
10.1.2. ensure that any part of the specification for the Goods and/or Services which it provides is complete and accurate and contains all information KeepMe Lifestyle Ltd may require
10.1.3. co-operate fully with KeepMe Lifestyle Ltd in relation to delivery or collection of the Goods; and
10.1.4. co-operate fully with KeepMe Lifestyle Ltd in relation to the provision of the Services, and provide KeepMe Lifestyle Ltd with all necessary assistance
11.1. Proposals for the Works given by KeepMe Lifestyle Ltd will be based upon the information and materials provided by the Client and no warranty or representation is given by KeepMe Lifestyle Ltd concerning suitability. The Client will be responsible for final checking and approval of the Works.
11.2. KeepMe Lifestyle Ltd will take all reasonable care to safeguard material owned by the Client and entrusted to the custody of KeepMe Lifestyle Ltd for the purposes of carrying out the Works. However, it will be responsibility of the Client to insure any such items or materials against loss or damage while in the custody of KeepMe Lifestyle Ltd. KeepMe Lifestyle Ltd will not have any liability for any loss suffered by the Client arising from the loss or damage of any such items while in the custody of KeepMe Lifestyle Ltd.
11.3. It will be the responsibility of the Client to ensure the compliance by any product of the Works with all safety requirements and any other applicable standards and to obtain any necessary licences and approvals, and the Client shall indemnify and keep indemnified KeepMe Lifestyle Ltd in respect of all and any claims against KeepMe Lifestyle Ltd, howsoever arising, under the Consumer Protection Act 1987 by reference to such products.
12. Limitation of Liability
12.1. KeepMe Lifestyle Ltd does not limit or exclude its liability:
12.1.1.for death or personal injury caused by its negligence or other default
12.1.2. for breach of the terms implied by section 12 of the Sale of Goods Act 1979 and by section 2 of the Supply of Goods and Services Act 1982
12.1.3. for defective products under the Consumer Protection Act 1987; or
12.1.4. for fraud or fraudulent misrepresentation.
12.2. Neither party will be liable for:
12.2.1. loss of data or use;
12.2.2. any form of indirect, consequential or special loss; or
12.2.3. any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect; and
in each case, however arising.
12.3. KeepMe Lifestyle Ltd will carry out the Works to a proper professional standard but otherwise it will not have any liability for any loss suffered by the Client arising from or out of the Works or any resulting product
13. Title and Risk
13.1. Irrespective of whether title to the Goods remains vested in KeepMe Lifestyle Ltd in accordance with clause 13.2, risk in the Goods will pass to the Client on delivery of the Goods to the Client under clause 14.1.
13.2. Title to the Goods shall remain vested in KeepMe Lifestyle Ltd and shall not pass to the Client until payment in full and cleared funds has been received by KeepMe Lifestyle Ltd for:
13.2.1. the Goods
13.2.2. the Services
13.2.3. any other products and services sold or supplied by KeepMe Lifestyle Ltd to the Client for which payment is outstanding
13.3. Until title to the Goods has passed to the Client, the Client will:
13.3.1. hold the Goods as bailee for KeepMe Lifestyle Ltd;
13.3.2. store the Goods separately from all other goods, products or material in the Client’s possession;
13.3.3. take all reasonable care of the Goods and keep them in a reasonable condition;
13.3.4. insure the Goods: (i) with a reputable insurer (ii) from the date of delivery (iii) against all risks (iv) for an amount at least equal to their price (v) noting KeepMe Lifestyle Ltd’s interest on the policy as the payee;
13.3.5. ensure that the Goods are clearly identified (in a manner reasonably satisfactory to KeepMe Lifestyle Ltd) as belonging to KeepMe Lifestyle Ltd;
13.3.6. Inform KeepMe Lifestyle Ltd promptly if it becomes subject to any of the events set out in clause 18.1; and
13.3.7. promptly provide KeepMe Lifestyle Ltd with such information concerning the Goods as KeepMe Lifestyle Ltd may request from time to time.
13.4. Notwithstanding clause 13.3, the Client may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clause 18.1 is or is likely to occur.
13.5. If, at any time before title to the Goods has passed to the Client, the Client informs KeepMe Lifestyle Ltd, or KeepMe Lifestyle Ltd reasonably believes, that the Client has or is likely to become subject to any of the events specified in clause 18.1, KeepMe Lifestyle Ltd may;
13.5.1. require the Client at the Client’s expense to redeliver the Goods to KeepMe Lifestyle Ltd; and
13.5.2. if the Client fails to redeliver the Goods, KeepMe Lifestyle Ltd and its employees and appointed agents shall be entitled (at any time and without the need to give notice) to enter upon any property where the Goods or any part of them are stored (or KeepMe Lifestyle Ltd reasonably believe the Goods to be stored) and repossess them and thereafter sell or otherwise deal with and/or dispose of all or any part of the Goods.
14.1. The Goods will be:
14.1.1. delivered by, or for KeepMe Lifestyle Ltd to the delivery location agreed between the parties (“Delivery Location”) (where delivery is agree to in writing by KeepMe Lifestyle Ltd) and on such date(s) agreed to in writing by KeepMe Lifestyle Ltd; or
14.1.2. made available for collection by the Client at KeepMe Lifestyle Ltd’s premises. The Client will collect the Goods on the date or within the period agreed with KeepMe Lifestyle Ltd.
14.2. The Goods will be deemed delivered:
14.2.1. if delivered by, or for, KeepMe Lifestyle Ltd under clause 14.1.1, on arrival of the Goods at the Delivery Location; or
14.2.2. if collected by the Client under clause 14.1.2, on completion of loading at KeepMe Lifestyle Ltd’s premises.
14.3. Whilst the KeepMe Lifestyle Ltd will use reasonable endeavours to meet delivery dates, such dates are approximate only and time for delivery is not of the essence.
14.4. KeepMe Lifestyle Ltd will not be liable for any delay in or failure of delivery caused by:
14.4.1. Client’s failure: (i) to make the Delivery Location available; (ii) prepare the Delivery Location as required for delivery of the Goods; or (iii) provide the KeepMe Lifestyle Ltd with adequate instructions, for delivery or otherwise relating to the Goods;
14.4.2. the Client’s failure to collect the Goods from the KeepMe Lifestyle Ltd ’s premises; or
14.4.3. an event of Force Majeure.
14.5. If the Client fails to accept delivery of, or collect, the Goods as provided in clause 14.1.1 or 14.1.2 on the date or within the period agreed with KeepMe Lifestyle Ltd:
14.5.1. delivery of the Goods will be deemed to have occurred at 09.00 on the second Business Day following such date/period; and
14.5.2. KeepMe Lifestyle Ltd will store and insure the Goods pending delivery, and the Client will pay all costs and expenses, including storage and insurance charges, incurred by KeepMe Lifestyle Ltd in doing so.
14.6. If, two Business Days after the due date for delivery or collection/the last day of the period for delivery or collection of the Goods, the Client has not taken delivery of, or collected, the Goods KeepMe Lifestyle Ltd may resell or otherwise dispose of the Goods without the requirement for notice to or consent from the Client. KeepMe Lifestyle Ltd’s right to resell or otherwise dispose of the Goods shall apply irrespective of whether the Goods have been branded and/or have been marked by KeepMe Lifestyle Ltd at part of the Client product specification for the Client. KeepMe Lifestyle Ltd will:
14.6.1. deduct storage and insurance charges and reasonable costs of resale, incurred by KeepMe Lifestyle Ltd; and
14.6.2. account to the Client for any excess of the resale price over, or invoice the Client for any shortfall of the resale price below, the price paid by the Client for the Goods.
15. Goods and services
15.1. KeepMe Lifestyle Ltd gives no warranty in relation to the Goods and in particular, the conditions implied by ss 13–15 of the Sale of Goods Act 1979 are expressly excluded.
15.2. KeepMe Lifestyle Ltd will provide the Services to the Client in accordance with any specification for the Services agreed with the Client.
15.3. KeepMe Lifestyle Ltd may make any changes to the Services:
15.3.1. needed to comply with applicable law or safety requirements; or
15.3.2. which do not materially affect the nature or quality of the Services; and
15.4. KeepMe Lifestyle Ltd will provide the Services with reasonable care and skill.
15.5. KeepMe Lifestyle Ltd will use reasonable endeavours to meet the timescales agreed for the performance of the Services. However, time will not be of the essence for such performance.
15.6. If KeepMe Lifestyle Ltd is prevented or delayed in performing the Services by any cause attributable to the Client, KeepMe Lifestyle Ltd (without prejudice to its other rights):
15.6.1. may suspend performance of the Services until the Client rectifies its default;
15.6.2. will not be liable for any costs or losses sustained by the Client as a result of such suspension; and
15.6.3. may charge the Client (and the Client will pay in accordance with this Agreement) costs or losses incurred by KeepMe Lifestyle Ltd arising from the Client’s default.
16. English Law
This Agreement and any other matters concerning the relationship between KeepMe Lifestyle Ltd and the Client shall be governed by and construed in accordance with English Law and any disputes shall be subject to the exclusive jurisdiction of the Courts of England.
17. Delay Due to Force Majeure
17.1. KeepMe Lifestyle Ltd will not be liable if delayed in or prevented from performing its obligations under this Agreement due to an event of Force Majeure, provided that it:
17.1.1. promptly notifies the Client of the event of Force Majeure and its expected duration; and
17.1.2. uses reasonable endeavours to minimise the effects of that event.
17.2. If, due to an event of Force Majeure, KeepMe Lifestyle Ltd:
17.2.1. is or will be unable to perform a material obligation; or
17.2.2. is delayed in or prevented from performing its obligations for a continuous period exceeding 30 days then the parties will, within 30 days, renegotiate this Agreement to achieve, as nearly as possible, the original commercial intent.
18.1. This Agreement may be terminated forthwith at any time by KeepMe Lifestyle Ltd on written notice to the Client if:
18.1.1. the Client commits a material breach, or series of breaches resulting in a material breach, of this Agreement and such breach is not remediable or if capable of remedy is not remedied within 15 days of written notice to do so;
18.1.2. the Client suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
18.1.3. the Client (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (c) makes an application to court for protection from its creditors generally;
18.1.4. the Client passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or administrator is appointed in relation to the Client, or a winding-up order is made in relation to the Client, other than solely in relation to a solvent amalgamation or reconstruction;
18.1.5. a receiver or administrative receiver may be or is appointed in relation to the Client or any of its assets;
18.1.6. any creditor of the Client attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Client’s assets, and such attachment or process is not discharged within 14 days;
18.1.7. the Client takes or suffers any action similar to any of the above in any jurisdiction;
18.1.8. there is a material change in the management, ownership or control of the Client;
18.1.9. the Client suspends trading, ceases to carry on business, or threatens to do either;
18.1.10. the Client is subject to an event of Force Majeure under clause 17.
18.2. In addition to its rights under clause 18.1 KeepMe Lifestyle Ltd may terminate this Agreement at any time immediately on written notice to the Client if the Client has failed to pay any amount due under this Agreement on the due date.
18.3. On termination of this Agreement for any reason:
18.3.1 the Client will immediately pay all invoices of KeepMe Lifestyle Ltd then outstanding and not disputed in good faith;
18.3.2. KeepMe Lifestyle Ltd will, within three Business Days, invoice the Client for all Goods delivered or provided but not yet invoiced and the Client will pay such invoice within a further three Business Days (unless the invoice is disputed in good faith);
18.3.3. the Client will forthwith return any materials of KeepMe Lifestyle Ltd then in its possession or control; if it fails to do so, KeepMe Lifestyle Ltd may enter onto any premises owned by or under the control of the and take possession of them;
18.3.4. the accrued rights and liabilities of the parties will not be affected; and
18.3.5. any clause which expressly or by implication are to survive termination will do so.
19.1. No set-off
All payments by the Client will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless a party is compelled by law to deduct or withhold any such amounts, in which case it will pay to the other such additional amount as will ensure that the other is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of this Agreement is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from this Agreement and the remaining provisions of this Agreement will otherwise remain in full force.
Notices under this Agreement will be in writing and sent to the persons and addresses set out at the beginning of this Agreement (or such new address notified in writing by a party to the other party) . Notices may be given, and will be deemed received:
19.4.1. by first-class post: two Business Days after posting
19.4.2. by airmail: seven Business Day after posting;
19.4.3. by hand: on delivery;
19.4.4. by facsimile: on receipt of a successful transmission report from the correct number; and
19.4.5. by e-mail: on receipt of a delivery or read receipt mail from the correct address.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
19.6. Rights of Third Parties
This Agreement is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
19.7. Entire Agreement
This Agreement constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply.
This Agreement will bind and benefit each party’s successors and personal representatives.