ART MARKETING TERMS AND CONDITIONS OF SALE (these "Terms and Conditions")
These terms and conditions apply to the use of the Art Marketing website. By using this website to order any of the products offered you agree to be bound by the terms and conditions set out below.
If you have an issue or any question with regard to these terms and conditions, before you place an order, kindly contact our Customer Service team by e-mail at [email protected] , or call us on +44 (0) 1582 794541 weekdays only between 9am and 5pm. All calls to Customer Services will be charged at the local rate (BT users only, other network charges may vary), and both inbound and outbound calls may be recorded for quality monitoring and training purposes
1. DEFINITIONS and Interpretation
In this Contract:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
Art Marketing Limited, a company registered in England and Wales under number 01534760 whose registered office is at Unit 1, Redbourn Industrial Park, Redbourn, St Albans, Hertfordshire, AL3 7LG
Any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London
These Terms and Conditions and the relevant Order Acknowledgment (except to the extent that the terms of the Order Acknowledgment differ from the Long Term Agreement (if any), or are not otherwise agreed in writing by Art Marketing)
The customer of Art Marketing whose details may be more particularly set out in the relevant order or its Customer Account with Art Marketing and/or long term agreement between the Parties
The account details of a customer of Art Marketing stipulated in a new customer application form, and as amended by a customer from time to time (subject to Art Marketing’s written agreement if Art Marketing’s obligations under this Contract are affected), including contact details, invoice address, delivery details and special instructions for the provision of Products to that customer by Art Marketing
"Event of Force Majeure"
Has the meaning given to it in Clause 11.1
Has the meaning given to it in Clause 7.7.2
"Long Term Agreement"
Any written agreement between the Parties governing the long-term relationship concerning the supply of Products by Art Marketing to Customer
The request by Customer to Art Marketing for the provision of particular Products, which shall be in accordance with the terms of any particular Long Term Agreement
The written document or written communication (if any) which Art Marketing despatches to Customer (in response to Art Marketing’s receipt of an Order), which may contain (together with any Long Term Agreement and/or Customer Account) the particular details of any provision of particular Products and which shall reflect the commercial terms of the Long Term Agreement (if any)
Either Art Marketing or Customer
Has the meaning given to it in Clause 4.1
The price payable by Customer to Art Marketing for the supply by Art Marketing of the Products, as stipulated in this Contract or Long Term Agreement (or if no such price is stipulated there, this shall be the price listed in Art Marketing's published price list current at the date of the Order)
Any of Art Marketing's products provided or to be provided by Art Marketing to Customer pursuant to this Contract
1.2 references to "Clauses" are to clauses of these Terms and Conditions;
1.3 headings are inserted for convenience only and shall not affect the interpretation or construction of this Contract;
1.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
1.5 references to "includes" or "including" or like words or expressions shall mean without limitation;
1.6 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.7 references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 12) includes in electronic form.
2.1 The terms of this Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Customer. These Terms and Conditions apply to Art Marketing's supply of all Products. The placement of any Order, the giving by Customer of any delivery instruction or the acceptance by Customer of delivery of the Products shall constitute unqualified acceptance by Customer of these Terms and Conditions.
2.2 Save as expressly provided herein, this Contract (together with any documents referred to in it) shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties hereto preceding the date of this Contract and in any way relating to the subject matter of this Contract and to the exclusion of any representations not expressly stated herein save for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each Party acknowledges that it has not entered into this Contract based on any representation that is not expressly incorporated into this Contract.
2.3 This Contract (together with any documents referred to in it) constitutes the whole agreement and understanding of the Parties as to the subject matter hereof and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to herein.
2.4 Subject to Clause 2.2, all materials and other particulars furnished by Art Marketing prior to any Long Term Agreement, or in Art Marketing's sales or marketing materials or other documents (including its catalogues, trade literature, brochures, quotations, price lists or website) or made orally by Art Marketing, are given for general information purposes only and Customer acknowledges that it is not entering into this Contract in reliance upon any such materials or other particular (except to the extent that such materials or particulars form part of this Contract); the Products may also look different to their representation in any such materials or particulars. Some of the Products may have variations of shading and finish.
2.5 Customer shall submit the Order in writing and on the same terms and within any parameters set as in any Long Term Agreement and/or Customer Account. If the Parties agree that Art Marketing will proceed to supply the Products, then such supply shall be only on the understanding that any differences in the Order from the Order Acknowledgment, Customer Account or Long Term Agreement shall have no effect unless the Parties expressly agree in writing.
2.6 Unless Art Marketing indicates a contrary method of acceptance in writing, this Contract shall be legally formed and the Parties shall be legally bound when the Order Acknowledgment is despatched to Customer.
2.7 Subject to Clause 3.2, no change to this Contract shall be binding unless it is agreed in writing by authorised representatives of both Parties.
2.8 In the event of any conflict between the provisions of these Terms and Conditions and the rest of this Contract, or any Long Term Agreement, then the following order of precedence shall apply:
2.8.1 the Long Term Agreement prevails over an Order Acknowledgment and these Terms and Conditions; and
2.8.2 any Order Acknowledgment prevails over these Terms and Conditions.
2.9 Customer shall ensure that the Order contains full details of the Product to be supplied, the quantity of the Product ordered and the identity of Customer. Any price or delivery requirement other than in accordance with this Contract is of no effect.
2.10 It is Customer's responsibility to ensure that all information supplied by it is complete and accurate and to point out to Art Marketing in writing anything which is incomplete or inaccurate. Customer shall ensure that the Order meets its particular requirements.
2.11 Any advice or recommendation given by representatives of Art Marketing to Customer (including as to storage, suitability for Customer’s needs and use of the Products) is for convenience and guidance only and shall be entirely at Customer’s own risk without any Liability to Art Marketing.
2.12 Each Order constitutes a separate contract. There may be more than one contract between the Parties in force at the same time as this Contract.
3. Delivery and Risk
3.1 In consideration for the payment of the Price and any other sums due by Customer under this Contract, Art Marketing shall, subject to these Terms and Conditions, supply to Customer the Products referred to in the Order Acknowledgment.
3.2 Art Marketing reserves the right to delay delivery or cancel this Contract (in whole or in part) without Liability, including if:
3.2.1 the amount owing by Customer to Art Marketing under all contracts between the Parties (including under this Contract) exceeds any credit limit for credit extended by Art Marketing to Customer or if any required payment due from Customer to Art Marketing has not yet been made; or
3.2.2 a Product in the Order is out of stock or no longer available for purchase. Where a Product is out of stock rather than no longer available, the Product shall automatically be put on back order and delivery to Customer delayed without further notice and delivered at a time when the Product is in stock and available for delivery. Contracts for Products which are no longer available shall be cancelled.
3.3 Art Marketing shall use its reasonable endeavours to perform its obligations within any timescales set out in this Contract, but time for performance shall not be of the essence. Any timeframe for delivery in a previous contract shall not be an indication of the timeframe for delivery in this Contract.
3.4 Unless otherwise agreed in writing by Art Marketing, delivery shall be to the delivery address stipulated by Customer in its Customer Account; unless a different address for delivery is specified in the Order Acknowledgment, in which case delivery shall be to the delivery address stipulated in the Order Acknowledgment.
3.5 Customer shall arrange for delivery of the Products sufficiently in advance of its required use of the Products to allow a buffer time for later than expected delivery and so as to avoid an knock-on costs, expenses, liabilities, losses or damages.
3.6 Art Marketing may supply Products with modifications or improvements incorporated into them, provided that the dimensions do not change and the quality is not adversely affected.
3.7 Packaging shall be in accordance with Art Marketing’s customary practices or as used by a courier company which may deliver Products to Customer on behalf of Art Marketing. If Customer would like a special request for packaging, this is subject to Art Marketing’s prior written agreement and Customer shall pay the extra cost.
3.8 Partial delivery or performance shall be permitted. Art Marketing may deliver and provide the Products in instalments. Unless the Parties otherwise agree in writing, Art Marketing may invoice Customer for each instalment.
3.9 Delay, default or non-delivery of any instalment by Art Marketing shall not entitle Customer to cancel or terminate, and shall not affect, the remainder of this Contract.
3.10 Customer shall ensure that it is ready for safe receipt of the Products without undue delay.
3.11 Subject to Clause 3.13, where Art Marketing (or a third party courier company on behalf of Art Marketing) delivers the Products to Customer’s premises, Art Marketing (or a third party courier company on behalf of Art Marketing) shall deliver to the nearest entrance to the delivery address and at ground floor only. It is Customer’s responsibility to get the Products from that point to any other part of the delivery address. Customer shall provide or procure the provision of the delivery vehicle with reasonable access to park and deliver, or give Art Marketing sufficient notice for reasonable arrangements for making deliveries to Customer to be made.
3.12 Subject to Clause 3.13, Customer may be required to sign a delivery note and other documentation upon receipt of the Products. The signing of any such documentation by Customer shall be evidence that the Products have been delivered and in the quantities stipulated in the documentation. Customer shall inspect the Products and packaging for any obvious damage and make a note of any obvious damage when signing.
3.13 Customer shall check the size, dimensions and quantity and inform Art Marketing in writing with five Business Days of delivery of any non-conformance with the Contract.
3.14 If Customer fails to inspect the Products on delivery, Customer shall sign the delivery note for the Products as “unchecked” and specifically note this on the delivery note. Customer shall be deemed to have inspected and accepted the Products as delivered in good, working order if the delivery note is signed without reference to the Products being accepted as “unchecked”.
3.15 All risk in the Products shall pass to Customer upon delivery, provided that where delivery is delayed due to breach by Customer of its obligations under this Contract risk shall pass at the date when delivery would have occurred but for that breach.
3.16 Customer shall keep the Products fully insured on Art Marketing's behalf with a reputable insurance company to the reasonable satisfaction of Art Marketing for their full price against all risks of loss or damage from the time when the risk passes to Customer until property passes in accordance with Clause 4. On request, Customer shall produce the policy of insurance to Art Marketing. If the Products are lost, damaged or destroyed, Customer shall hold the proceeds of insurance for and to the order of Art Marketing pending Payment.
3.17 If delivery of the Products is delayed or obstructed through Customer's default or breach of this Contract or if Customer unreasonably declines or delays in accepting or taking delivery or receipt of the Products, then (subject to Clause 7) Art Marketing shall not have any Liability as a result and Art Marketing may (without prejudice to any other right or remedy available to it) do all or any of the following:
3.17.1 sell the Products for Art Marketing's account;
3.17.2 cancel this Contract as regards any Products that remain to be delivered or performed; and
3.17.3 charge a reasonable storage fee for the Products.
3.18 Where delivery is not to the UK, Customer shall be responsible for complying with all applicable laws, regulations and codes of practice governing the importation and use of the Products in the destination country.
4.1 Notwithstanding delivery, title to and ownership of the Products shall not pass to Customer until Art Marketing has received in full (in cleared funds) all sums due to it in respect of:
4.1.1 the Products; and
4.1.2 all other sums which are or which become due to Art Marketing from Customer on any account;
4.2 Until Payment, Customer shall:
4.2.1 hold the Products on a fiduciary basis as Art Marketing's bailee;
4.2.2 hold the Products in good, saleable condition;
4.2.3 keep an up-to-date list of the location of Art Marketing’s property and present this to Art Marketing upon request;
4.2.4 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
4.2.5 store the Products separately from other goods or in any way so that they remain readily identifiable as Art Marketing’s property.
4.3 Customer may resell the Products before Payment solely on the following conditions:
4.3.1 any sale shall be effected in the ordinary course of Customer's business at full market value;
4.3.2 any such sale shall be a sale of Art Marketing's property on Customer's own behalf and Customer shall deal as principal (not agent) when making such a sale;
4.3.3 Customer shall keep the proceeds of sale separate from any money or property of Customer or third parties; and
4.3.4 Customer shall still be responsible for paying to the full value of the Payment. If Art Marketing requires, Customer shall authorise and direct such third party buyer to pay to Art Marketing a like part of the sum due to Customer in respect of the Products sold and assign to Art Marketing such part of the debt owed to Customer by the third party.
4.4 Art Marketing may at any time until title passes under this Clause 4 without notice recover possession of the Products which are the property of Art Marketing. Art Marketing may also require Customer at Customer’s cost, within three days of Art Marketing’s request, to deliver up to Art Marketing or make available to Art Marketing for collection from a single accessible collection point as Art Marketing requires all Products which are the property of Art Marketing. Customer hereby grants to Art Marketing for Art Marketing and its agents, staff, officers, employees and contractors an irrevocable licence to enter for that purpose any premises then occupied by or in the ownership or possession of Customer or Customer’s customer. Customer shall indemnify Art Marketing against all claims, losses, damages, liabilities, costs and expenses so arising in exercising its rights under this Clause 4.4.
4.5 Art Marketing may recover payment for the Products notwithstanding that ownership of any of the Products has not passed from Art Marketing.
4.6 On termination of this Contract, howsoever arising, Art Marketing's rights contained in this Clause 4 shall remain in effect.
5. Customer Requirements
5.1 Customer shall be responsible for ensuring that:
5.1.1 the Products meet its requirements and purposes and are suitable for all anticipated uses;
5.1.2 the Products are properly maintained and used in accordance with Art Marketing’s instructions and in the environment envisaged for use of the Products (including Products intended for indoor use only being used indoors, Products used in the appropriate climates, and Products needing extra protection for particular use having that extra protection); and
5.1.3 the Products are used and disposed of in accordance with all relevant laws, regulations, bye-laws and codes of practice relating to those types of equipment.
6.1 Subject to the rest of this Clause 6, Art Marketing warrants that:
6.1.1 as at delivery and for 12 months from delivery, all Products shall be free from material defects in design, workmanship and materials and conform to Art Marketing’s published specification for the Product as set out in the Art Marketing customer catalogue and/or Art Marketing’s website from time to time; and
6.1.2 it shall deliver the Products undamaged and in the quantities agreed in the Order Acknowledgment.
6.2 Art Marketing is not responsible for any services or products not expressly stipulated in this Contract that Art Marketing will provide.
6.3 Art Marketing shall at its option replace or repair or provide a refund for Products that are lost or damaged in transit to the place of delivery. Art Marketing shall not have any Liability for loss of or damage to Products in transit or on delivery to the point of delivery unless Customer informs Art Marketing within three Business Days, and in any event notifies Art Marketing in writing within five Business Days:
6.3.1 after the estimated date of delivery or receipt that it has not received the Products or the right quantity of them; or
6.3.2 after receipt that the Products are damaged; and also
unless Customer provides Art Marketing with Art Marketing's delivery note or order reference (as required) and such other information and documentation as Art Marketing reasonably requires at the same time as the notice.
6.4 Subject to Clause 6.6, Art Marketing shall at its option replace, repair or provide a refund for the delivered Products which are not in conformance with the warranty set out in Clause 6.1 (and the replacement may either be an exact match or something else providing compliance with that warranty).
6.5 Notwithstanding Customer’s remedies under Clauses 6.3 and 6.4, Art Marketing may ask Customer to dispose of a Product delivered in a damaged condition beyond repair. Customer acknowledges that if a Product is disposed of in response to a request by Art Marketing pursuant to this Clause 6.5, it shall ensure that disposal is conducted in a safe and secure manner through a legitimate means of Product disposal. Customer shall not dispose of a damaged Product without the prior written consent from Art Marketing.
6.6 Art Marketing's Liability for defective or damaged Products is subject to:
6.6.1 Customer notifying Art Marketing of any claim promptly upon discovery of the defect or damage and in any event within one month of discovery, specifying with reasonable detail the way in which it is alleged that the Products do not conform to this Contract;
6.6.2 Customer having provided Art Marketing with Art Marketing's delivery note or order reference (as required), evidence of the date of any supply to the consumer, and such other information and documentation as Art Marketing reasonably requires at the same time as the notice in Clause 6.6.1;
6.6.3 Customer showing to Art Marketing's reasonable satisfaction that the defect or damage is solely attributable to Art Marketing's or its supplier’s defective design, materials or workmanship in the Products and not: (a) wear or tear from normal use; (b) any servicing by anyone after delivery other than by anyone authorised by Art Marketing; (c) the Products having been misused or subjected to neglect, improper or inadequate care or carelessness (including being dropped), or abnormal usage conditions; (d) the Products having been involved in any accident or attempt at repair, alteration, change or modification or inspection within the Product itself except by or on behalf of Art Marketing or as approved by Art Marketing or in accordance with Art Marketing’s instructions; or (e) the Products having been used other than in accordance with good practice and Art Marketing’s instructions or recommendations;
6.6.4 Customer allowing Art Marketing’s representatives the opportunity to inspect, test, repair and replace the Products;
6.6.5 Customer having paid for the Products in full; and
6.6.6 upon Art Marketing's request, Customer returning the defective or damaged Products carriage and insurance paid at Customer's risk to Art Marketing's premises or such other location stipulated by Art Marketing and carefully packed to avoid damage in transit. Unless and until Art Marketing inspects, repairs or receives the Products, Customer shall hold the Products safely and securely in good condition unless asked to dispose of all or part of them in accordance with Clause 6.5.
6.7 The warranty contained in this Clause 6 is specifically limited to Customer. Except to the extent expressly agreed by Art Marketing in writing, no warranty is made to any other person, whether subsequent buyer or user or customer, or to any bailee, licensee, assignee, employee, agent or otherwise.
6.8 If Customer makes an invalid claim under the warranty, Art Marketing may charge Customer for its fees and costs of examining, testing, storing, repairing and replacing the Products and dealing with the claim and removing and delivering the Products.
6.9 Except where expressly provided for within this Contract, Art Marketing excludes all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Products.
7.1 This Clause 7 prevails over all other Clauses and sets forth the entire Liability of Art Marketing, and the sole and exclusive remedies of Customer, in respect of:
7.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Contract or of any goods or services in connection with this Contract; or
7.1.2 otherwise in relation to this Contract or entering into this Contract.
7.2 Art Marketing does not exclude or limit its Liability for:
7.2.1 its fraud; or
7.2.2 death or personal injury caused by its Breach of Duty; or
7.2.3 any breach of the non-excludable obligations implied by law as to having title to supply goods; or
7.2.4 supply of a defective Product in accordance with Part I of the Consumer Protection Act 1987; or
7.2.5 any other Liability which cannot be excluded or limited by applicable law.
7.3 Subject to Clause 7.2, Art Marketing does not accept and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Contract.
7.4 Subject to Clause 7.2, Art Marketing shall not have any Liability in respect of any:
7.4.1 indirect or consequential losses, damages, costs or expenses;
7.4.2 loss of actual or anticipated profits;
7.4.3 loss of contracts;
7.4.4 loss of use of money;
7.4.5 loss of anticipated savings;
7.4.6 loss of revenue;
7.4.7 loss of goodwill;
7.4.8 loss of reputation;
7.4.9 ex gratia payments;
7.4.10 loss of business;
7.4.11 loss of operation time;
7.4.12 loss of opportunity; or
7.4.13 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or Art Marketing or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 7.4.2 to 7.4.13 apply whether such losses are direct, indirect, consequential or otherwise.
7.5 Subject to Clause 7.2, the total aggregate Liability of Art Marketing shall be limited to the greater of: (a) £10,000; or (b) 110% of the total sums paid and total other sums payable by Customer to Art Marketing under this Contract.
7.6 The limitation of Liability under Clause 7.5 has effect in relation both to any Liability expressly provided for under this Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of this Contract.
7.7 In this Contract:
7.7.1 "Breach of Duty" means the breach of any (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty); and
7.7.2 "Liability" means liability in or for breach of contract (including liability under any indemnity), Breach of Duty, deliberate tort, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Contract, including liability expressly provided for under this Contract or arising by reason of the invalidity or unenforceability of any term of this Contract (and for the purposes of this definition, all references to this "Contract" shall be deemed to include any collateral contract, but each Contract shall constitute a separate Contract).
8.1 Customer shall pay to Art Marketing the Price and other sums due under this Contract and by the times required.
8.2 Unless otherwise stipulated in the Long Term Agreement (or otherwise agreed between the Parties in writing from time to time):
8.2.1 Art Marketing shall issue an invoice to Customer for the Price (or the relevant part) and other sums due in connection with the Price the day after the Products are delivered to Customer; and
8.2.2 Customer shall pay Art Marketing in full within 30 days of the date of invoice.
8.3 Where Art Marketing requires payment in advance of delivery of the Products, delivery of the Products is conditional on Art Marketing first receiving the advanced payment in cleared funds in full.
8.4 The Price and any other sums due under this Contract are exclusive of any value added tax or other sales, import and export duties or taxes (if applicable), together with any delivery costs, which shall be payable in addition at the same time as payment of the Price and other sums due.
8.5 Customer shall pay Art Marketing by any payment method reasonably stipulated by Art Marketing from time to time.
8.6 Unless otherwise stipulated in this Contract or agreed in writing between the Parties, payment shall be in the currency specified on the invoice from Art Marketing to Customer.
8.7 Payment shall be deemed made when Art Marketing has received cleared funds in full.
8.8 Payment of all sums due to Art Marketing under this Contract shall be made by Customer in full without any set-off, deduction or withholding whatsoever.
8.9 Art Marketing may set-off against any amounts due and payable by Customer to Art Marketing (however such amounts arise) against any other amounts due and payable by Art Marketing to the Customer in respect of this Agreement or any other agreement, and payment of any amount by Art Marketing to Customer shall be without prejudice to any claims or rights which Art Marketing may have against Customer.
8.10 If Customer is late in paying any part of any monies due to Art Marketing under this Contract or any other contract between the Parties, Art Marketing may at its sole discretion (without prejudice to any other right or remedy available to it whether under this Contract or by any statute, regulation or bye-law) do any or all of the following:
8.10.1 charge interest and claim other costs on the amount due but unpaid as permitted set under the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and
8.10.2 sell or otherwise dispose of any Products which are the subject of any Order, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and
8.10.3 suspend the performance of this Contract and any other contract between the Parties until Art Marketing has been paid in full.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Customer acknowledges that, as between the Parties, Art Marketing and its licensors and suppliers own all intellectual property rights in the Products and any delivered documentation or materials relating to the Products, whether or not they are created, developed, designed, customised, adapted, altered or assembled in accordance with Customer’s instructions, requirements or designs.
9.2 Customer shall have a licence to use Art Marketing’s intellectual property rights to the extent necessary to exercise its rights in the manner envisaged by Art Marketing under this Contract.
10. Term and Termination
10.1 This Contract shall commence when it becomes legally binding in accordance with Clause 2.6 and, unless terminated earlier by either Party exercising any right of termination as set out in this Contract, shall continue in force until the later of:
10.1.1 Customer having paid in full for all sums due under this Contract; and
10.1.2 Art Marketing having delivered all the Products to Customer.
10.2 Either Party may terminate this Contract immediately by notice in writing to the other Party if:
10.2.1 the other Party is in persistent breach of any of its obligations under this Contract or any other contract between the Parties; or
10.2.2 the other Party is in material breach of any of its obligations under this Contract or any other contract between the Parties which is incapable of remedy; or
10.2.3 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Contract or any other contract between the Parties after having been required in writing to remedy such breach within a period of no less than 30 days; or
10.2.4 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986), or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt.
10.3 In any event, Art Marketing may terminate this Contract if Customer is at least five Business Days' late in paying any sum due under this Contract or any other contract between the Parties.
10.4 Termination of this Contract shall be without prejudice to any accrued rights or remedies of either Party.
10.5 Termination of this Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
10.6 Upon termination of this Contract for any reason:
10.6.1 Art Marketing shall cease to perform this Contract; and
10.6.2 all outstanding sums shall become immediately payable, whether invoiced or not.
11. Force Majeure
11.1 Save for obligations in respect of payment of the Price, neither Party shall have any Liability for any breach, hindrance or delay in the performance of this Contract attributable to any cause beyond its reasonable control, including any act of God, actions or omissions of third parties not in the same group as the Party seeking to rely on this Clause (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, seizure or forfeiture, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, unusual traffic volumes, unusual travel restrictions, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions (including cold, heat, wind, rain, snow, ice or fog), loss at sea, earthquake, volcano, ash cloud, natural disaster, accident, mechanical breakdown, third party software, collapse of building structures, failure of machinery (other than used by the relevant Party) or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.
11.2 Each Party agrees to inform the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
11.3 The performance of each Party's obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
11.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
11.5 Should any performance of obligations be delayed under this Clause 11, each Party shall nevertheless accept performance as and when the other shall be able to perform.
11.6 If the Event of Force Majeure continues without a break for more than one month, either Party may terminate this Contract immediately by notice to the other, in which event neither Party shall have any Liability by reason of such termination.
11.7 If Art Marketing has contracted to provide identical or similar products to more than one customer and is prevented from fully meeting its obligations to Customer by reason of an Event of Force Majeure, Art Marketing may decide at its absolute discretion which contracts it will perform and to what extent.
12.1 Any notice required or authorised to be given under this Contract shall be in writing and shall be served by personal delivery or by recorded delivery or overnight commercially recognisable courier or by facsimile addressed to the relevant Party at its address stated in this Contract or at such other address or facsimile number as is notified by the relevant Party to the other for this purpose from time to time including Customer contact details in its Customer Account or at the address or facsimile number of the relevant Party last known to the other.
12.2 Any notice so despatched shall be deemed to have been served two Business Days after the same shall have been despatched by recorded delivery or by overnight commercially recognisable courier and any notice so given by facsimile shall be deemed to have been served upon receipt of an answerback signal from the receiving machine, and in proving such service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, despatched and signed for or an answerback signal and confirmation of delivery received.
13.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Contract, Art Marketing may assign, transfer, novate or subcontract its rights, liabilities or obligations under this Contract either in whole or in part to any other person, firm or company. Art Marketing shall promptly give notice to Customer of any such assignment, transfer or novation.
13.2 Customer shall not (or purport to) assign, transfer, novate, charge or otherwise encumber, create any trust over or deal in any manner with this Contract or any of its rights, liabilities or obligations under this Contract without the prior written consent of Art Marketing (such consent not to be unreasonably withheld or delayed).
14.1 Unless a Party expressly states in writing that it is waiving a particular power, right or remedy in a particular stated instance, no failure or delay or omission by either Party in exercising any power, right or remedy under this Contract or at law shall operate as a waiver of such power, right or remedy; and no waiver in any particular instance shall extend to or affect any other or subsequent event or impair any powers, rights or remedies in respect of it or in any way modify or diminish that Party's other powers, rights or remedies under this Contract or at law.
14.2 If any Clause or other provision in this Contract shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Clause or provision or part of any Clause or provision, all of which shall remain in full force and effect.
14.3 Nothing in this Contract shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the Parties.
14.4 A person who is not a Party to this Contract has no rights under any law to enforce any term of this Contract.
14.5 Customer is responsible for complying with any applicable government export control laws and regulations.
14.6 This Contract 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 English law. All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language. In respect of any disputes:
14.6.1 If Customer is domiciled in the European Union, the exclusive forum for settling any disputes which may arise out of or in connection with this Contract shall be the English courts.
14.6.2 If Customer is not domiciled in the European Union, any dispute which may arise out of or in connection with this Contract shall be exclusively referred to and finally resolved by arbitration under the LCIA Rules. Those Rules are deemed to be incorporated by reference into this Clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
Version: 006. July 2021