Agreement for the supply of travel services
2. Commencement and duration
3. Travel Plan
4. Supplier’s obligations
5. Customer’s obligations
6. Change control
7. Charges and payment
8. Intellectual property rights
9. Confidentiality and the Supplier’s property
10. Limitation of liability
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11. Data protection
13. Force majeure
17. Entire agreement
19. No partnership or agency
20. Rights of third parties
22. Dispute resolution
23. Governing law and jurisdiction
Schedule 1 Services
Schedule 2 Travel Plan
Schedule 3 Pricing
Part 1. Price
Part 2. Payment
THIS AGREEMENT is dated [DATE]
(1) THE ADVENTURE BOUTIQUE LIMITED incorporated and registered in England and Wales with company number 08867078 whose registered office is at 62 Luminosity Court, 49 Drayton Green Road, London, W13 0NW (Supplier).
(2) The individual who enters into this agreement for the provision of expedition and holiday services by the Supplier in return for which he/she pays the Supplier a fee (Customer).
The customer agrees to enter into a contractual relationship on these terms in which a holiday/expedition/touring/treking or mountaineering i s arranged and/or managed by the supplier in return for payment by the customer of a booking fee.
THE CUSTOMER AGREES THAT MOUNTAINEERING, TREKING/TOURING AND EXPEDITIONS IN REMOTE AND/OR FOREIGN COUNTRIES ALL CARRY A RISK OF INJURY AND/OR DEATH WHICH CANNOT BE ELIMINATED. CUSTOMERS THEREFORE AGREE TO TAKE PROPER CARE OF HIM/HERSELF AND ACCEPT THAT ALTHOUGH THE SUPPLIER WILL DO ITS UTMOST TO RESTRICT SUCH RISKS TO AN ACCEPTABLE LEVEL THERE MAY REMAIN A RISK OF AN ACCIDENT OCCURRING. THE CUSTOMER AGREES TO TAKE OUT ADEQUATE PERSONAL AND TRAVEL INSURANCE AND TO FOLLOW MEDICAL ADVICE AS APPROPRIATE.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Customer’s Equipment: any equipment, systems, cabling or facilities provided by the Customer and used directly or indirectly in the supply of the Services.
Customer’s Manager: the Customer’s manager for the Services, where the Customer is a business, appointed in accordance with clause 5.1.
Deliverables: all Documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Services in any form, including the service deliverables specified in the Travel Plan.
Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
In-put Material: all Documents, information and materials provided by the Customer relating to the Services, including specifications, requirements and all in-put materials specified in the Travel Plan.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights including rights to use photographs and/or video footage of all Travel unless the Customer expressly withdraws consent, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Pre-existing Materials: all Documents, information and materials provided by the Supplier relating to the Services which existed prior to the commencement of this agreement, including computer programs, data, reports and specifications.
Travel: a travel project being an itinerary, trip, expedition, journey, voyage, holiday or trek as described in the Travel Plan.
Travel Milestones: a date by which a part of the Travel is estimated to be completed, as set out in the Travel Plan.
Travel Plan: the detailed plan describing the Travel and setting out the estimated timetable (including Travel Milestones) and responsibilities for the provision of the Services agreed in accordance with clause 3.
Services: the services to be provided by the Supplier under this agreement as set out in the Travel Plan, together with any other services which the Supplier provides or agrees to provide to the Customer.
Supplier’s Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties under which title passes to the Customer.
Supplier’s Team Leader: the Supplier’s manager for the Services and/or Travel appointed under clause 4.3.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 The schedules and background form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the schedules and background.
1.5 Words in the singular shall include the plural and vice versa.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7 A reference to writing or written includes faxes but not e-mail.
1.8 Where the words include(s), including or in particular are used in this agreement, they are deemed to have the words without limitation following them. Where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.9 Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement.
2. Commencement and duration
2.1 The Supplier shall provide the Services to the Customer on the terms and conditions of this agreement.
2.2 The Supplier shall provide the Services to the Customer from the date specified in the Travel Plan.
2.3 The Services supplied under this agreement shall continue to be supplied until the Travel is completed and/or terminated in accordance with the Travel Plan and/or this agreement
3. Travel Plan
3.1 The Travel Plan(s) shall be agreed in the following manner:
(a) the Customer shall provide the Supplier with an order request for a Travel Plan, setting out the requirements and specifications of the services which it is requesting from the Supplier, including a description of the Travel. This shall constitute a request for information which the Supplier shall consider;
(b) the Supplier shall, as soon as reasonably practicable, provide the Customer with a response (offer);
(c) the Supplier and the Customer shall agree the Travel Plan and when it has been agreed this Travel Plan shall become a Schedule to and subject to this agreement; and
(d) only when proper payment has been made by the Customer and accepted by the Supplier by the issuance of a Booking Acceptance Notice has the Trip been booked.
3.2 Once the Travel Plan has been agreed and signed in accordance with clause 3.1(d), no amendment shall be made to it except in accordance with clause 6 and clause 14.
4. Supplier’s obligations
4.1 The Supplier shall use reasonable endeavours to manage and provide the Services, and to deliver the Deliverables to the Customer, in accordance with the Travel Plan in all material respects.
4.2 The Supplier shall use reasonable endeavours to meet Travel Milestones specified in the Travel Plan, but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this agreement.
4.3 Specifically, the Customer understands and agrees that the Travel Plan has to be flexible to accommodate a group of independent travellers with different needs and abilities and also to accommodate bad weather or unexpected events or mishaps. If the Trip objective cannot be achieved in the reasonable opinion of the Supplier’s Team Leader then additional costs for travel, hotel and/or lodgings may be incurred and this shall be at the expense of the Customer.
4.4 The Supplier shall appoint the Supplier’s Team Leader in respect of each Travel who shall have authority contractually to bind the Supplier on all matters relating to the Travel (with the exception of refunds which shall be managed centrally). The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Team Leader throughout the term of Travel, but may replace him or her from time to time where reasonably necessary in the interests of the Supplier’s business.
4.5 The Supplier will attempt to ensure that Team Leaders and support staff are supplied in appropriate numbers to ensure the principle objectives of the Travel can be achieved. Similarly, Team Leaders named in expedition descriptions, anywhere in the Supplier’s literature or on the Supplier’s website, may also be changed without notice to the Customer.
4.6 The Supplier shall use reasonable endeavours to observe all relevant health and safety rules and regulations and any other reasonable security requirements that apply and the Customer agrees to cooperate with the Supplier in effecting its reasonable health and safety and duty of care requirements. This may involve changes to any aspect of the trip that the Supplier’s Team Leader may decide in his absolute discretion as he will seek not to place the Customer at undue risk.
4.7 The Supplier’s Team Leader will seek to solve Trip problems wherever prudent and possible to so using his absolute discretion, experience and expertise. The Customer in signing this agreement agrees to follow the decisions of the Team Leader and recognises that the Team Leader will be acting in the best interests of the Supplier and the group as and whole.
4.8 The Team Leader may request the Customer to leave the Travel if they believe the Customer:
a) is not following his reasonable instructions;
b) is acting detrimentally to the group as a whole;
c) is putting at risk or may put at risk the health, well-being or enjoyment of the Customer or other members of the group and
d) is acting illegally contrary to local law.
4.9 The Supplier gives notice to the Customer that it may be forced to alter dates and times of Travel together with durations, flight schedule, routes or hotel accommodation from time to time though the Supplier shall attempt to notify the Customer of any such changes when it becomes aware of them.
4.10 The Supplier except where negligent shall not be responsible for any death, personal injury or uninsured loss of personal property belonging to or used by the Customer.
4.11 The Supplier will arrange flights on scheduled national and international carriers and will provide flight details to the Customer within one month of departure.
4.12 All flights booked by the Supplier for the Customer will be in accordance with the conditions of the carrying airline which will limit the liability it extends to its passengers under its own terms and conditions, international law and conventions. The Supplier cannot guarantee air flight travel and will not be liable for the consequences of delays, cancellations, change of routing, change of departure or arrival airport or for any other change howsoever caused.
4.13 All flights arranged on the Customer’s behalf will be with specified airlines at specific airports. The published cost of each flight is as advertised to us by the airline and a reservation will be made for the Customer on this basis. In the event of error or change of advertised price the Supplier shall inform the Customer of any change and then the Customer will be asked to pay for any price increase before the booking is confirmed with the airline. If the Customer does not agree to any increase in this cost then he may withdraw the booking without penalty and the Customer’s deposit if any will be returned to the Customer.
4.14 The Supplier is not obliged to change any booking to a Customer’s preferred requirements though may make reasonable endeavours to do assuming time and resources permit.
5. Customer’s obligations
5.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services and appoint the Customer’s Manager in relation to the Services and the Travel, who shall have the authority contractually to bind the Customer on matters relating to that Travel as specified in this agreement;
(b) provide for the Supplier any information reasonably required by it for the organisation of any Travel;
(c) provide, in a timely manner such other information as the Supplier may reasonably require, and ensure that it is accurate in all material respects;
(d) be responsible (at own cost) for preparing and maintaining the relevant insurances to cover travel, rescue, repatriation, hostage and medical emergency and/or cover. The travel insurance provider must agree first to meet any costs that the Supplier may reasonably undertake on behalf of the Customer before the Supplier agrees to expend on the Customer’s behalf any costs. In the event of any dispute the Customer agrees to indemnify the Supplier in full such costs before seeking to recover the same from his insurance provider(s) if any.
(e) inform the Supplier of all health and safety information pertinent to the Travel;
(f) ensure that all Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s Equipment, the use of In-put Material and the use of the Customer’s Equipment in relation to the Supplier’s Equipment [insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment], in all cases before the date on which the Services are to start and
(h) agree by the signing of this agreement that he understands its terms and conditions and agrees to be bound by them. Specifically he agrees that Travel whether abroad or otherwise carries risks and at high altitude these risks increase by way of poor weather, altitude sickness, snow, ice, wind, rain or other inclement weather and in signing this agreement he recognises and accepts the hazards of such outdoor sport and/or activities.
5.2 If the Supplier’s performance of its obligations under this agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this agreement, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
5.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of this agreement to the expiry of 12 months after the termination of this agreement, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
5.5 Any consent given by the Supplier in accordance with clause 5.4 shall be subject to the Customer paying to the Supplier a sum equivalent to 20% of the then current annual remuneration of the Supplier’s employee, consultant or subcontractor or, if higher, 20% of the annual remuneration to be paid by the Customer to that employee, consultant or subcontractor.
5.6 The Customer agrees to submit an experience questionnaire and medical declaration failing which the Supplier in his absolute discretion may cancel the booking. Similarly, the Supplier may in his absolute discretion transfer the Customer to a more suitable Travel which he may feel is more appropriate to the Customer’s experience and/or medical condition. In the event of cancellation, the deposit paid will be refunded in full provided the Customer returns the questionnaire and declaration within 30 days of the Customer’s booking date.
6. Change control
6.1 If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
6.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any necessary variations to the Supplier’s charges arising from the change;
(c) the likely effect of the change on the Travel Plan; and
(d) any other impact of the change on this agreement.
6.3 If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services, the relevant Travel Plan and any other relevant terms of this agreement to take account of the change and this agreement has been varied in accordance with clause 14.
6.4 Notwithstanding clause 6.3, the Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Supplier requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
6.5 The Supplier may charge for the time it spends assessing a request for change from the Customer on a time and materials basis in accordance with clause 7.
7. Charges and payment
7.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in Schedule 3, which shall specify the basis of the charges.
7.2 Customers agree that prices stated on the website may be inaccurate and agree that the prices stated constitute invitations to treat as opposed to binding offers. Prices will only become final when the booking is confirmed by way of the Supplier issuing a Booking Acceptance Notice.
7.3 The Customer shall pay each invoice submitted to it by the Supplier, in full and in cleared funds, within 14 days of receipt to a bank account nominated in writing by the Supplier.
7.4 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Customer shall pay the interest immediately on demand; and
(b) suspend all Services until payment has been made in full.
7.5 Time for payment shall be of the essence of this agreement.
7.6 All sums payable to the Supplier under this agreement shall become due immediately on its termination, despite any other provision. This clause 7.6 is without prejudice to any right to claim for interest under the law, or any such right under this agreement.
7.7 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7.8 Prices on this website are based on costs and exchange rates as at the time of posting. The Supplier will do what it can to mitigate against any rise in its operating costs and strives to keep prices fixed wherever possible though such mitigation does not amount to a fixed price guarantee. In the unlikely event that surcharges become necessary, the following conditions will apply :
a) Surcharges arising directly from a change in the world price of oil and levied by airlines, or agents acting for the Supplier, will be passed on and you will be invoiced accordingly.
b) If surcharges become necessary for reasons other than as a direct consequence of a change in the world price of oil, the Customer may cancel his booking without penalty if the surcharge amounts to more than 10% of the cost of the Travel.
7.9 Prices advertised are dependent on group sizes. As described in the Supplier’s website the numbers are target sizes and may be increased or decreased at the discretion of the Supplier. The Supplier gives no undertaking as to the minimum or maximum size of a group but will inform potential and actual customers of this when requested.
7.10 A Customer leaving a Travel once commenced will not be entitled to receive any refund or compensation unless at the discretion of the Supplier’s Managing Director in writing.
7.11 Should the Customer otherwise wish or need to cancel the Travel the following charges will apply:
a) 90 days or more before the start of the expedition: loss of deposit.
b) 60 days or more but less than 90 days before the start of the expedition: loss of deposit and 20% of remaining balance.
c) 30 days or more but less than 60 days before the start of the expedition: loss of deposit and 40% of remaining balance.
d) 14 days or more but less than 30 days before the start of the expedition: loss of deposit and 80% of remaining balance.
e) Less than 14 days before the start of the expedition: 100% of total trip cost.
Customers are advised to consider travel insurance coverage to pay for cancellation costs and losses accrued.
7.12 A Customer may transfer from one Travel to another with the written consent of the Supplier and upon paying a £50 administration charge per person per booking. Over and above this the Customer agrees to pay at his own cost all and any additional charges relating to booking costs such as deposits payable with respect to airlines and/or agents which may not refundable or transferable according to their own terms and conditions for which the Supplier shall not be responsible.
7.13 If the transfer results in a cheaper Travel the Supplier shall pay the difference to the Customer.
7.14 Any transfer request must be made in writing and be made before the final date for due balances if any. A transfer request received after this time will be treated as a cancellation and the transfer request will not be accepted.
7.15 Where a transfer occurs because of lack of numbers in a particular Travel no transfer fee will be payable.
7.16 If the Customer is paying by credit card a 2% charge will be added to any payment due to cover the credit card payment service provider’s charges. Such charge can be avoided by using a debit card or by sending a cheque.
7.17 Payments must be made in full before the last date stated by the Supplier for which cleared funds can be accepted. Failure to provide cleared funds in time may result in cancellation of the Customer’s booking and forfeit of deposit.
8. Intellectual property rights
8.1 As between the Customer and the Supplier, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Supplier. Subject to clause 8.2, the Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services. If the Supplier terminates this agreement, this licence will automatically terminate.
8.2 The Customer acknowledges that, where the Supplier does not own any of the Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
9. Confidentiality and the Supplier’s property
9.1 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 the Supplier, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain.
9.2 The Customer may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors (if any) who need to know such information for the purposes of carrying out the Customer’s obligations under this agreement; and
(b) as may be required by law, court order or any governmental or regulatory authority.
9.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this clause 9.
9.4 The Customer shall not use any such information for any purpose other than to perform its obligations under this agreement.
9.5 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier’s Equipment) shall, at all times, be and remain as between the Supplier and the Customer the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
10. Limitation of liability – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 This clause 10 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:
(a) any breach of this agreement;
(b) any use made by the Customer of the Services, the Deliverables or any part of them; and
(c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with this agreement.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this agreement.
10.3 Nothing in this agreement limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
(c) for any liability incurred by the Customer as a result of any breach by the Supplier of the clause as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
10.4 Subject to clause 10.2 and clause 10.3:
(a) the Supplier shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
(b) the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this agreement shall be limited to the price paid for the Services.
Customers are advised to consider appropriate insurance coverage to pay for the above costs and losses accrued.
11. Data protection
The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Services. The Customer also agrees to receiving regular marketing updates from the Supplier of future travel though will have the opportunity to opt out of future mailings at any time.
12.1 Subject to clause 12.4 and clause 12.5, this agreement shall terminate automatically on completion of the Services in accordance with the contract.
12.2 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this agreement without liability to the other on giving the other not less than one months’ written notice or immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the material terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; or
(d) the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or [(being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(e) the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors; or
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party; or
(g) an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed over the other party; or
(h) a floating charge holder over the assets of that other party has become entitled to appoint, or has appointed, an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the other party, or a receiver is appointed over the assets of the other party; or
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(d) to clause 12.2(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(m) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001).
12.3 The parties acknowledge and agree that any breach of clauses shall constitute a material breach for the purposes of this clause 12.
12.4 On termination of this agreement for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall, [within a reasonable time,] return all of the Supplier’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.5 On termination of this agreement (however arising) the following clauses shall survive and continue in full force and effect:
(a) clause 8;
(b) clause 9;
(c) clause 10;
(d) clause 12; and
(e) clause 23.
13. Force majeure
13.1 The Supplier, provided that it has complied with the provisions of clause 13.3, shall not be in breach of this agreement, nor liable for any failure or delay in performance of any obligations under this agreement (and, subject to clause 13.4, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following:
(a) acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
(b) war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
(c) terrorist attack, civil war, civil commotion or riots;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law);
(f) fire, explosion or accidental damage;
(g) loss at sea;
(h) adverse weather conditions;
(i) sickness of staff or quarantine;
(j) cancellation of transport including but not limited to road, rail, air or shipping;
(k) collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
(l) any labour dispute, including but not limited to strikes, industrial action or lockouts;
(m) any issues in relation to visa or travel permissions whereby governmental action or inaction prevents or interrupts a planned itinerary or expedition;
(n) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
(o) interruption or failure of utility service, including but not limited to electric power, gas or water.
13.2 The corresponding obligations of the Customer will be suspended to the same extent.
13.3 The Supplier that is subject to a Force Majeure Event shall not be in breach of this agreement provided that:
(a) it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance;
(b) it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
(c) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
13.4 If the Force Majeure Event prevails for a continuous period of more than 7 days, either party may terminate this agreement by giving 7 days’ written notice to the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
Customers are advised to consider appropriate insurance coverage to pay for the above force majeure events occurring.
Subject to clause 3 and clause 6, no variation of this agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
15.1 Failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that (or any other) right or remedy, nor shall it preclude or restrict any further exercise of that (or any other) right or remedy.
15.2 No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of any such right or remedy.
15.3 A waiver (which may be given subject to conditions) of any right or remedy provided under this agreement or by law shall only be effective if it is in writing and shall apply only to the party to whom it is addressed and for the specific circumstances for which it is given. It shall not prevent the party who has given the waiver from subsequently relying on the right or remedy in other circumstances.
15.4 A party that waives a right or remedy provided under this agreement or by law in relation to another party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
15.5 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
16.1 If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2 If a provision of this agreement (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17. Entire agreement
17.1 This agreement and any documents referred to in it or annexed to it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
17.2 Each party acknowledges that, in entering into this agreement and the documents referred to in it or annexed to it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or those documents. Each party agrees that the only remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this agreement.
17.3 Nothing in this clause shall limit or exclude any liability for fraud.
18.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under this agreement.
18.3 Each party that has rights under this agreement is acting on its own behalf and not for the benefit of another person.
19. No partnership or agency
Nothing in this agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. Rights of third parties
A person who is not a party to this agreement shall not have any rights under or in connection with it.
21.1 A notice or other communication given to a party under or in connection with this agreement:
(a) shall be in writing in English (or accompanied by a properly prepared translation into English);
(b) shall be signed by or on behalf of the party giving it;
(c) shall be sent for the attention of the person, at the address specified in this clause (or to such other address, or person as that party may notify to the other, in accordance with the provisions of this clause); and
(d) shall be:
(i) delivered personally; or
(ii) sent by commercial courier; or
(iii) sent by pre-paid first-class post or recorded delivery; or
(iv) sent by airmail requiring signature on delivery.
21.2 The addresses for service of a notice or other communication are as follows:
(i) address: THE ADVENTURE BOUTIQUE LIMITED 62 Luminosity Court, 49 Drayton Green Road, London, W13 0NW
(ii) for the attention of: Dr Rajiv Joshi
(i) address: [ADDRESS AS PROVIDED IN THE CUSTOMER’S ORDER FORM] .
21.3 If a notice or other communication has been properly sent or delivered in accordance with this clause, it will be deemed to have been received as follows:
(a) if delivered personally, at the time of delivery; or
(b) if delivered by commercial courier, at the time of signature of the courier’s receipt; or
(c) if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
(d) if sent by airmail, five days from the date of posting.
21.4 For the purposes of this clause:
(a) all times are to be read as local time in the place of deemed receipt; and
(b) if deemed receipt under this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice or other communication is deemed to have been received when business next starts in the place of receipt.
21.5 To prove delivery, it is sufficient to prove that:
(a) if sent by pre-paid first class post, the envelope containing the notice or other communication was properly addressed and posted.
21.6 The provisions of this clause 21 shall not apply to the service of any process in any legal action or proceedings.
21.7 A notice or other communication required to be given under or in connection with this agreement shall not be validly served if sent by e-mail.
22. Dispute resolution
22.1 If any dispute arises in connection with this agreement, the Supplier’s Team Leader and the Customer shall, within 14 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute by way of negotiations.
22.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 14 days after the date of the ADR notice.
22.3 No party may commence any court proceedings in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated, or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
23. Governing law and jurisdiction
23.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter.