Whatley & Co (Pewsey) Limited Terms and Conditions
Your attention is particularly drawn to the provisions of clause 11 (Limitation of liability).
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.
Contract: the contract between Whatley & Co and the Customer for the supply of Goods and Services in accordance with these Conditions.
Customer or you: the person or firm who purchases the Goods and/or Services from Whatley & Co.
Delivery Location: has the meaning given in clause 3.5.
Force Majeure Event: has the meaning given to it in clause 14.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's written acceptance of the Quote.
Quote: the quote and scope of works provided Whatley & Co to the Customer specifying the Goods and/or Services to be supplied by Whatley & Co.
Scope of Works: the description or specification for the Goods and/or Services provided by Whatley & Co to the Customer in the Quote.
Site: the site at which the Services are to be provided, details of which are set out in the Quote.
Services: the services agreed to be supplied by Whatley & Co as set out in the Quote.
Whatley & Co: Whatley & Co. (Pewsey) Limited registered in England and Wales with company number 01369666.
Whatley & Co Materials: has the meaning given in clause 4.1.8.
1.2 Interpretation:
(i) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(ii) A reference to a party includes its personal representatives, successors and permitted assigns.
(iii) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(iv) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(v) A reference to writing or written includes email.
1.3 In some areas of these Conditions you will have different rights under these terms depending on whether you are a business or consumer. You are a consumer if:
1.3.1 you are an individual; and
1.3.2 you are buying Goods and Services from Whatley & Co wholly or mainly for personal use (not for use in connection with your trade, business, craft or profession).
You are a business in any other case.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Whatley & Co issues written acceptance of the Order and/or produces an invoice for the Goods and Services at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any drawings, descriptive matter or advertising issued by Whatley & Co and any descriptions of the Goods or illustrations or descriptions of the Services contained in Whatley & Co's catalogues, brochures or its website are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by Whatley & Co shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.7 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. Supply of Goods and Services
3.1 The Goods and Services are described in Quote.
3.2 Whatley & Co reserves the right to amend the Quote to update the description of the Goods or Services if required by any applicable statutory or regulatory requirement, and Whatley & Co shall notify the Customer in any such event.
3.3 The Supplier shall provide the Services using reasonable care and skill.
3.4 Whatley & Co shall use all reasonable endeavours to meet any performance or delivery dates for the Services (and associated Goods) specified in the Quote, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.5 Whatley & Co shall deliver the Goods to the Site or such other location as the parties may agree (Delivery Location) at any time after Whatley & Co notifies the Customer that the Goods are ready.
3.6 Whatley & Co shall not be liable for any delay in delivery of the Goods or providing the Services that is caused by a Force Majeure Event or the Customer's failure to provide Whatley & Co with adequate delivery instructions, access or any other instructions that are relevant to the supply of the Goods or Services.
3.7 If Whatley & Co fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. 
3.8 If the Customer fails to accept delivery of the Goods within three Business Days of Whatley & Co notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Whatley & Co's failure to comply with its obligations under the Contract in respect of the Goods:
3.8.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Whatley & Co notified the Customer that the Goods were ready; and
3.8.2 Whatley & Co shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.9 If ten Business Days after the day on which Whatley & Co notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, Whatley & Co may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4. Customer's obligations
4.1 The Customer shall:
4.1.1 ensure that the terms of the Order and information in the Quote is complete and accurate;
4.1.2 co-operate with Whatley & Co in all matters relating to the Services;
4.1.3 provide Whatley & Co, its employees, agents, consultants and subcontractors, with access to the Customer's site and other facilities as reasonably required by Whatley & Co to provide the Services;
4.1.4 provide Whatley & Co with such information as Whatley & Co may reasonably require in order to supply the Services, and ensure that such information is complete and accurate, including but not limited to details of the location of known existing underground services and utilities;
4.1.5 ensure that:
(i) the Site is easily accessible and is clear from contamination;
(ii) the Site has a supply of water with a minimum flow rate of 1,000 litres per hour available at no cost to Whatley & Co;
(iii) Whatley & Co are able to operate machinery and access the Site at all times between 8:00am and 5:00pm on Business Days;
(iv) all works to accommodate the Services are complete (unless otherwise agreed to be provided in the Quote by Whatley & Co) including but not limited to forestry works and removal of obstructions;
4.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for Whatley & Co to undertake the Services before the date on which the Services are to start;
4.1.7 comply with all applicable laws, including health and safety laws;
4.1.8 keep all materials, equipment, and other property of Whatley & Co (Whatley & Co Materials) at the Site in safe and secure conditions, and not dispose of or use Whatley & Co Materials other than in accordance with any authorisation and instructions given by Whatley & Co; and
4.1.9 obtaining all necessary abstraction licences for the Site.
4.2 If Whatley & Co's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
4.2.1 without limiting or affecting any other right or remedy available to it, Whatley & Co shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Whatley & Co's performance of any of its obligations;
4.2.2 Whatley & Co shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Whatley & Co's failure or delay to perform any of its obligations as set out in this clause 4.2; and
4.2.3 the Customer shall reimburse Whatley & Co on written demand for any costs or losses sustained or incurred by Whatley & Co arising directly or indirectly from the Customer Default.
5. Warranty for Goods
5.1 Whatley & Co warrants that on delivery and for a period of:
5.1.1 in the case of a pump, 24 months; and
5.1.2 in any other case, 12 months,
from the date of delivery (Warranty Period) the Goods shall be free from material defects in material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to Whatley & Co within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; and 
5.2.2 Whatley & Co is given a reasonable opportunity of examining such Goods; 
Whatley & Co shall, at its option, repair or replace the defective Goods (or parts thereof).
5.3 Whatley & Co shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the defect arises because the Customer failed to follow Whatley & Co's oral or written instructions as to the use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.2 the defect arises as a result of Whatley & Co following any instructions supplied by the Customer;
5.3.3 the Customer alters or repairs such Goods without the written consent of Whatley & Co;
5.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, Whatley & Co shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by Whatley & Co.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Whatley & Co receives payment in full (in cash or cleared funds) for the Goods and any other goods that Whatley & Co has supplied to the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Whatley & Co's property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Whatley & Co's behalf from the date of delivery;
6.3.4 notify Whatley & Co immediately if it becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.3; and
6.3.5 give Whatley & Co such information as Whatley & Co may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
7. Rights to end the Contract
7.1 If the Customer is a consumer then the Customer may have a legal right to change its mind within 14 days and receive a refund. These rights, under the Consumer Contracts Regulations 2013, are explained in more detail in this clause 7.
7.2 Any rights as a consumer to change your mind does not apply in respect of:
7.2.1 Services, once these have been completed, even if the cancellation period is still running;
7.2.2 any Goods which become mixed inseparably with other items after their delivery; and
7.2.3 any Goods which are unique to your particular specifications that Whatley & Co would be unable to sell to a third party.
7.3 If the Customer is a consumer, how long they have to change their mind depends on the scope of the Quote. The Customer has 14 days after the day Whatley & Co email them to confirm that the Order is accepted. However, once Whatley & Co have completed the Services the Customer cannot change its mind, even if the period is still running. If the Customer cancels after Whatley & Co have started the Services, the Customer must pay Whatley & Co for the services provided up until the time the Customer notifies Whatley & Co.
7.4 To end the contract the Customer must notify Whatley & Co by calling on 01672 562 404 or email at jill@whatley-pewsey.co.uk. Details of the Customer’s name, home address, details of the Order and, where available, phone number and email address must be provided.
7.5 If the Contract is ended for any reason after Goods have been dispatched to the Site or the Customer (or their agent or representative) has received them, they must be returned to Whatley & Co (or as Whatley & Co directs).
7.6 Whatley & Co will pay the costs of return:
7.6.1 if the Goods are faulty; or
7.6.2 if the Customer is ending the contract because they have been informed by Whatley & Co of an upcoming change to the Goods or Services, an error in pricing or description, a delay in delivery due to events outside Whatley & Co’s control or because the Customer has a legal right to do so as a result of something Whatley & Co have done wrong.
In all other circumstances (including where the Customer is a consumer exercising their right to change their mind), the Customer will be responsible for paying the costs of return or collection. 
7.7 If the Customer is entitled to a refund under these terms Whatley & Co will refund the price paid, by the method used for payment. However, Whatley & Co may make deductions from the price, as described below:
7.7.1 Whatley & Co may reduce the amount of the refund to reflect any reduction in the value of the Goods, if this has been caused by the Customer or their agents, representatives or contractors handling of them.
7.7.2 The maximum refund for delivery costs will be the costs of delivery by the least expensive delivery method offered. 
7.7.3 Whatley & Co may also deduct from any refund an amount for the supply of the Service for the period for which it was supplied, ending with the time when the Customer told Whatley & Co it had changed its mind. The amount will be in proportion to what has been supplied, in comparison with the full coverage of the Contract.
8. Charges and payment
8.1 The price for the Goods and Services shall be the price set out in the Quote and shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
8.2 Additional charges for standing time for Whatley & Co Materials and its employees, agents and contractors in the event of delay due to:
8.2.1 the acts or omissions of the Customer, or its agents or contractors; or
8.2.2 obstructions or other implications on the Site
shall be calculated on a time basis at the rate of £100 plus VAT for each Whatley & Co engineer on Site and added to the price payable set out in the Quote.
8.3 Any mapping, schematics, or third party forms required to be completed by Whatley & Co at the request of the Customer shall be changed at the rate of £90 per hour plus VAT. 
8.4 If additional Services are required to be provided outside of those specified in the Quote (for example additional filtration required to provide water of a potable quality) then such charges shall be calculated in accordance with Whatley & Co's daily fee rates for each individual person calculated on the basis of an eight and a half-hour day from 8.00 am to 5.00 pm worked on Business Days.
8.5 Whatley & Co reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Whatley & Co that is due to:
8.5.1 any factor beyond the control of Whatley & Co (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.5.2 any request by the Customer or general requirement to change the delivery date(s), quantities or types of Goods ordered; or
8.5.3 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Whatley & Co adequate or accurate information or instructions in respect of the Goods.
8.6 The Customer shall pay to Whatley & Co the price in accordance with the terms set out in the Quote.  
8.7 The Customer shall pay each invoice submitted by Whatley & Co:
8.7.1 within 30 days of the date of the invoice or in accordance with any terms agreed by Whatley & Co and confirmed in writing to the Customer; and
8.7.2 in full and in cleared funds to a bank account nominated in writing by Whatley & Co, and
time for payment shall be of the essence of the Contract.
8.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Whatley & Co to the Customer, the Customer shall, on receipt of a valid VAT invoice from Whatley & Co, pay to Whatley & Co such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
8.9 If the Customer fails to make a payment due to Whatley & Co under the Contract by the due date, then, without limiting Whatley & Co's remedies under clause 12, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.9 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.10 If you are a business customer all amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Data protection
9.1 Whatley & Co will only use any personal information provided to it in the course of providing the Goods and Services in accordance with its privacy policy. A copy of the policy is at https://www.whatley-pewsey.co.uk/privacy-notice. In the event that the Customer is purchasing Goods and Services from Whatley & Co in the course of business, the remaining provisions of this clause 9 shall apply.
9.2 The following definitions apply in this clause 9:
9.2.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
9.2.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
9.2.3 Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
9.3 The parties acknowledge that the Customer is the Controller and Whatley & Co is the Processor. 
9.4 Without prejudice to the generality of clause 9.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Whatley & Co for the duration and purposes of the Contract.
9.5 Without prejudice to the generality of clause  9.3, Whatley & Co shall, in relation to any Personal Data processed in connection with the performance by Whatley & Co of its obligations under the Contract:
9.5.1 process that Personal Data only on the instructions of the Customer unless Whatley & Co is required by Domestic Law to otherwise process that Personal Data. Where Whatley & Co is relying on Domestic Law as the basis for processing Personal Data, Whatley & Co shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Whatley & Co from so notifying the Customer;
9.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
9.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
9.5.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or Whatley & Co has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) Whatley & Co complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) Whatley & Co complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
9.5.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
9.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
9.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
9.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 9 [and allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of Whatley & Co, an instruction infringes the Data Protection Legislation].
9.6 The Customer consents to Whatley & Co appointing Joblogic and Xero as a third-party processor of Personal Data under the Contract. Whatley & Co confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party's standard terms of business or incorporating terms which are substantially similar to those set out in this clause 9 and in either case which will continue to reflect the requirements of the Data Protection Legislation. 
10. Confidentiality
10.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.2.
10.2 Each party may disclose the other party's confidential information:
10.2.1 to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
11.1 If the Customer is a consumer and Whatley & Co fail to comply with these terms, Whatley & Co are responsible for loss or damage suffered by the Customer that is a foreseeable result of Whatley & Co breaking this Contract or failing to use reasonable care and skill, but Whatley & Co is not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the Contract was made, both Whatley & Co and the Customer knew it might happen, for example, if it was discussed as part of Whatley & Co providing a Quote.
11.2 Unless otherwise provided in this clause, the restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.3 Except as expressly and specifically provided in this Contract, Whatley & Co shall have no liability for any damage caused by, and the Customer assumes sole responsibility for any losses arising as a result of:
11.3.1 any borehole or borehole drilling being aborted through having insufficient water or any water being of non-potable quality from whatever cause; 
11.3.2 any damage or destruction of any underground utilities within the Site unless the location of such utilities has been clearly and accurately identified by the Customer and such information has been provided to Whatley & Co in advance of the Services commencing; and
11.3.3 errors or omissions in any information, reports or data provided by the Customer or obtained by Whatley & Co from any third parties (including the Environment Agency, British Geological Survey or any other source) in connection with the Site, Services, or any actions taken by Whatley & Co at the Customer's direction.
11.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
11.4.1 death or personal injury caused by negligence;
11.4.2 fraud or fraudulent misrepresentation;
11.4.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
11.4.4 defective products under the Consumer Protection Act 1987.
11.5 If you are a consumer we only supply the Goods and Services to you for domestic and private use. If you use the Goods or Services for any commercial or business purpose our liability to you will be limited as set out in clause 11.6.
11.6 If you are a business customer:
11.6.1 subject to clause 11.4 and 11.6.2, Whatley & Co's total liability to the Customer shall not exceed the total sums paid or payable by the Customer under this Contract;
11.6.2 this clause 11.6.2 sets out specific heads of excluded loss and exceptions from them:
(i) The following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss; and
11.6.3 the following types of loss and specific loss are not excluded:
(i) sums paid by the Customer to Whatley & Co pursuant to the Contract, in respect of any Goods or Services not provided in accordance with the Contract; and
(ii) losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of Whatley & Co. For these purposes, third party claims shall include demands, fines, penalties, actions, investigations or proceedings, including but not limited to those made or commenced by subcontractors, Whatley & Co's personnel, and regulators.
11.7 This clause 11 shall survive termination of the Contract.
12. Termination
12.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
12.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
12.1.2 the other party, being a business:
(i) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(ii) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
12.1.3 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
12.2 Without affecting any other right or remedy available to it, Whatley & Co may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
12.3 Without affecting any other right or remedy available to it, Whatley & Co may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Whatley & Co if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.1.2 to clause 12.1.3, or Whatley & Co reasonably believes that the Customer is about to become subject to any of them.
13. Consequences of termination
13.1 On termination of the Contract:
13.1.1 the Customer shall immediately pay to Whatley & Co all of Whatley & Co's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Whatley & Co shall submit an invoice, which shall be payable by the Customer immediately on receipt;
13.1.2 the Customer shall return all of Whatley & Co Materials or Goods which have not been fully paid for. If the Customer fails to do so, then Whatley & Co may enter the Site and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
13.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
14. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Contract by giving 14 days' written notice to the affected party.
15. General
15.1 Assignment and other dealings
15.1.1 Whatley & Co may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
15.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Whatley & Co.
15.2 Notices.
15.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Quote.
15.2.2 Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause (iii), business hours means 8.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
15.2.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 15.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
15.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
15.6 Business customers - entire agreement.
15.6.1 If you are a business customer:
(i) this Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter; and
(ii) each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misrepresentation] based on any statement in the Contract.
15.6.2 Nothing in this clause 15.6 shall limit or exclude any liability for fraud.
15.7 Third party rights. 
15.7.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
15.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
15.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
15.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

 

 

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