Terms & Conditions
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Nefolo means Nefolo Ltd, a company registered in England and Wales with company registration number 13481798 and whose registered office address is 22 Manor Grove, Fifield, Berkshire, SL6 2PQ.
Business Day means 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 2.3;
Conditions means these terms and conditions as amended from time to time in accordance with clause 17.8;
Contract means the contract between Nefolo and the Customer for the supply of Goods and/or Services in accordance with these Conditions;
Contract Year means a 12-month period commencing with the Commencement Date or any anniversary of it;
Customer means the person or firm who purchases the Goods and/or Services from Nefolo in a business capacity;
Data Protection Legislation means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
EULA means an end user licence agreement between a manufacturer, distributor or other licensor of Goods or Services that are subject to that EULA and the relevant user(s);
Force Majeure Event has the meaning given to it in clause 16;
Goods means the hardware, software, subscriptions and maintenance/support contracts on hardware or software (or any part of them) provided to the Customer pursuant to an Order;
Goods Specification means any specification for the Goods, including any relevant plans or drawings, agreed in writing by the Customer and Nefolo;
Intellectual Property Rights means patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Order means the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form OR the Customer’s written acceptance of Nefolo’s Quote;
Quote means the document provided by Nefolo to the Customer detailing the Goods and/or Services to be supplied to the Customer, and incorporating the Goods Specification and/or the Services Specification, the quantities, charges and prices applicable to the Goods and Services, and any other applicable terms, details or information pertaining to those Goods and/or Services;
Services means the installation, support, consultancy, managed or other services supplied by Nefolo to the Customer pursuant to an Order and as set out in the Service Specification or other agreed documentation;
Service Specification means the description or specification for the Services provided in writing by Nefolo to the Customer;
Total Charges means all sums paid and payable by the Customer under a Contract in respect of Goods and Services actually supplied by Nefolo, whether or not invoiced to the Customer; and
UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example, or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.1.2.5 A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1 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.
2.2 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.
2.3 The Order will only be deemed to be accepted when Nefolo issues written acceptance of the Order at which point and on which date the Contract will come into existence (Commencement Date).
2.4 The Contract may not be cancelled by the Customer after the Commencement Date. The Customer acknowledges and agrees that it is liable for and will indemnify Nefolo against any costs, charges, expenses, damages, and losses, howsoever arising from its wrongful cancellation that are incurred by Nefolo.
2.5 Nefolo will be entitled to assume that any representative of the Customer placing an Order has the Customer’s authority to do so, and the Customer will be contractually bound by that commitment.
2.6 Any samples, drawings, designs, descriptive matter or advertising issued by Nefolo and any descriptions of the Goods or illustrations or descriptions of the Services contained in material made available by Nefolo are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They will not form part of the Contract nor have any contractual force.
2.7 Any Quote given by Nefolo will not constitute an offer and is only valid until the end of the calendar month in which the Quote is issued to the Customer unless expressly stated otherwise in writing.
2.8 All of these Conditions will apply to the supply of both Goods and Services except where application to one or the other is specified.
2.9 Each Contract will be subject to the version of the Conditions in force at the time the Contract is made. Nefolo reserves the right to revise and amend these Conditions from time to time. The date of the last revision appears at the end of these Conditions.
3. GOODS
3.1 The Goods are described in the Goods Specification and/or the Quote. The Customer is responsible for ensuring its Order is accurate and for its selection of Goods and their fitness for any particular purpose. Nefolo disclaims any liability for any errors in the Customer’s Order.
3.2 No other specification will form part of the Contract or have any contractual force.
3.3 Nefolo reserves the right to amend the Quote and the Goods Specification if required by any changes in specification made by its suppliers or changes necessitated by applicable statutory or regulatory requirement, and Nefolo will notify the Customer in any such event.
4. DELIVERY OF GOODS
4.1 Goods delivered directly to the Customer will be accompanied by a delivery note which shows the date of the Order, any relevant Customer reference numbers, and quantity of the Goods delivered.
4.2 Goods will be delivered to the Customer either directly from the manufacturer of the Goods, from a supplier to Nefolo (third party supplier), or from Nefolo’s warehouse at Nefolo’s discretion. Delivery of the Goods will take place at the delivery address stated in the Contract, or at such other delivery location as may be agreed in writing by Nefolo.
4.3 Software will be delivered to the Customer electronically unless stated to the contrary in the Quote or the Goods Specification and will be deemed accepted on delivery to the electronic delivery location specified in the Contract.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Nefolo will not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Nefolo with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Nefolo fails to deliver the Goods, its liability will 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.
4.6 Notwithstanding clause 4.5. Nefolo will have no liability for any failure to deliver the Goods to the extent that such failure is caused by:
4.6.1 a Force Majeure Event; or
4.6.2 the Customer’s failure to provide Nefolo with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods; or
4.6.3 the products becoming obsolete, superseded by new products or otherwise unavailable to Nefolo and Nefolo will be entitled to cancel any Order for those Goods.
and Nefolo will be entitled to cancel any Order for those Goods.
4.7 If the Customer fails or refuses to accept delivery of the Goods when due, or at Nefolo’s discretion after a second attempt at delivery, then except where such failure or delay is caused by a Force Majeure Event or by Nefolo’s failure to comply with its obligations under the Contract in respect of the Goods Nefolo may at its discretion:
4.7.1 cancel the delivery including any subsequent deliveries and charge the Customer for all costs, expenses and cancellation charges the Nefolo may incur;
4.7.2 store the goods until delivery takes place and charge the Customer for all related costs, expenses and insurance; and
4.7.3 without prejudice to any other right it may have in respect of the Customer’s failure to accept delivery or pay for them, resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage, transportation and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.8 On delivery the Customer must inspect the Goods on delivery and satisfy itself that the correct Goods in the correct quantities have been delivered and that they are not damaged and sign the delivery note as proof of delivery. If more than the quantity of Goods ordered has been delivered, the Customer must notify Nefolo as soon as possible and in any event within 24 hours of delivery, to arrange for the return of the excess Goods to Nefolo. Nefolo will not accept the return of any such Goods unless they are in unopened packaging and the seals (if any) remain intact.
4.9 Nefolo is entitled to assume that the person who signs the delivery note on the Customer’s behalf and reasonably appears and claims to have authority to do so does in fact have that authority.
4.10 The Customer must notify Nefolo within 2 Business Days of delivery of any damaged Goods that could not have been ascertained at the time of delivery and must arrange for the return of the damaged Goods. Nefolo will not accept the return of any such Goods unless returned:
4.10.1 within 10 Business Days of delivery; and
4.10.2 in original, unused condition in its packaging, complete with all manuals, cables and accessories.
4.11 Nefolo may deliver the Goods by instalments, which may at Nefolo’s discretion be invoiced and paid for separately. Any delay or failure in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
4.12 Where the Goods ordered by the Customer are subject to leasing arrangements, in addition to the terms of the Contract, the Customer will be required to enter into agreements with Lessors, including as required any agreements between Nefolo, the Customer, the Lessor(s) and any assignees of a Lessor. The Customer is responsible for providing all necessary documents required by Nefolo or the Lessor relating to the leasing arrangements.
5. QUALITY OF GOODS AND RETURNS
5.1. Nefolo is not the manufacturer of the Goods and is not the publisher or licensor of any Goods comprising software. The Goods are sold only with the benefit of any warranty or guarantee provided by the manufacturer or third party supplier unless extended warranty services or similar are provided as part of the Services.
5.2 The Customer is responsible for ensuring that the Goods are used, maintained and serviced in accordance with the terms of any manufacturer’s or third party supplier’s warranty or guarantee.
5.3 Except as provided in this clause 5, Nefolo will have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1 and Nefolo gives no representations, undertakings or warranties, express or implied, by operation of law or otherwise, including, without limitation, that the Goods will operate uninterrupted or that they will be free from defects or errors that may affect their performance, that any item will meet the Customer’s business requirements, any implied warranty or condition of merchantability, of satisfactory quality, and/or of fitness for a particular purpose.
5.4 These Conditions will apply to any repaired or replacement Goods supplied by Nefolo.
5.5 Returns are permitted only in accordance with manufacturers’ or third party suppliers’ returns and/or Dead on Arrival policies, and provided that Goods are returned within 25 Business Days of delivery or, if shorter, such other period of time permitted by a manufacturer or third party supplier, or the time periods set out in clause 4.10 where the provisions of that clause apply.
5.6 Where the Goods being returned are not defective or damaged the packaging must be unopened, and in the case of software delivered on physical media, it must be returned with unbroken seals. Nefolo will at its discretion either issue a credit note or grant a refund for properly returned Goods.
5.7 Subject to clause 4.10, if Goods are defective on delivery, damaged, or do not conform to specification, Nefolo will at its discretion and dependent on the terms offered by the manufacturer or third party supplier, either:
5.7.1 exchange the Goods for similar goods; or
5.7.2 refund the purchase price and/or licence fees for the Goods.
5.8 The Customer is responsible for the costs of returning Goods and may be subject to manufacturer or third party supplier imposed charges relating to the processing of returned Goods.
6 TITLE AND RISK
6.1 The risk of loss or damage to the Goods will pass to the Customer on delivery of the Goods to the carrier at the Shipping Point. Any agreed storage of Goods post-delivery on Customer’s behalf will be at Customer’s risk and cost.
6.2 Title to the Goods will pass to the Customer only when Nefolo receives payment in full (in cash or cleared funds) for the Goods and any other goods that Nefolo has supplied to the Customer in respect of which payment has become due, in which case title to the Goods will pass at the time of payment of all such sums. In the case of software title to the software will remain with the licensor, and is licensed for use by the Customer in accordance with the terms of the licensor’s licence applicable to that software. Acceptance of delivery by the Customer constitutes acceptance of the applicable licence terms.
6.3 Until title to the Goods has passed to the Customer, the Customer will:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Nepholo’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 Nefolo’s behalf from the date of delivery;
6.3.4 notify Nefolo immediately if it becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4; and
6.3.5 give Nefolo such information relating to the Goods as Nepholo may require from time to time.
6.4 The Customer may use the Goods in the ordinary course of its business (but not otherwise) before Nefolo receives payment for the Goods. However, the Customer may not resell the Goods before that time without Nefolo’s written permission.
6.5 If the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4 before title to the Goods passes to the Customer, or the Customer does not pay for any Goods or Services by the due date, then, without limiting any other right or remedy Nefolo may have:
6.5.1 the Customer’s right to use the Goods or Services in the ordinary course of its business ceases immediately; and
6.5.2 Nefolo may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them; and
(b) cease or suspend delivery of any Services, including but not limited to Software as a Service, other subscription services and maintenance and support services.
7 SUPPLY OF SERVICES
7.1 Nefolo will supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 Unless otherwise set out in a Quote or separate Service Specification, the following terms will apply:
7.2.1 Nefolo will normally carry out Services between 0900 and 1730 on a Business Day. Work may be carried out outside normal hours, which will incur additional charges, and any such work will be subject to prior written agreement.
7.2.2 Estimates of scope of work including dates and timings, and/or charges are not binding on Nefolo and are provided for guidance only. Charges will be made on a time and materials basis in accordance with Nefolo’s then current rate card.
7.2.3 Any agreement by Nefolo to provide Services on a fixed price basis is subject to the Customer fulfilling its obligations under clause 8 (Customer’s Obligations).
7.2.4 All expenses, including but not limited to travel, accommodation and subsistence, will be payable in addition to the charges for the Services.
7.2.5 The Customer is responsible for testing and acceptance of delivered Services and is required to confirm acceptance or inform Nefolo of issues preventing it from accepting the Services within 5 Business Days of Nefolo notifying the Customer of completion of the Services. If the Customer does not so notify or inform Nefolo, the Customer will be deemed to have accepted the satisfactory completion of the Services.
7.2.6 Where Goods include maintenance and/or support contracts, to the extent that they involve or require the provision of Services by Nefolo, the Services provided by Nefolo will be limited to first-line telephone support using reasonable endeavours to resolve incidents or problems during normal business hours (0900 to 1730 on Business Days)
7.3 Nefolo warrants to the Customer that the Services will be provided using reasonable care and skill in accordance with relevant industry standards and will do so in compliance with applicable law.
7.4 Nefolo reserves the right to amend the Service Specification or other agreed scope of works if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Nefolo will notify the Customer in any such event.
7.5 In the event of any breach of the warranties in this clause 7, the Customer must notify any issues it has with any of the Services within 25 Business Days after completion of those Services. The Customer’s exclusive remedy for any breach of such warranties will be the re-performance by Nefolo of the relevant Services, or in the event that Nefolo is unable or unwilling to remedy the breach by re-performance of the Services, a credit for the fees paid for the affected Services.
8 CUSTOMER’S OBLIGATIONS
8.1 The Customer will:
8.1.1 ensure that the terms of the Order and any information it provides to Nefolo for inclusion in the Goods Specification and/or the Service Specification are complete and accurate;
8.1.2 co-operate with Nefolo in all matters relating to the Services and perform such responsibilities or meet such dependencies as are set out in any Services Specification;
8.1.3 provide Nefolo, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Nefolo to provide the Services;
8.1.4 provide Nefolo with such information and materials as Nefolo may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.6 comply with all applicable laws, including health and safety laws;
8.2 If Nefolo’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):
8.2.1 without limiting or affecting any other right or remedy available to it, Nefolo will have the right to suspend performance of the Services or delivery of the Goods 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 Nefolo’s performance of any of its obligations;
8.2.2 Nefolo will not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Nefolo’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Customer will reimburse Nefolo on written demand for any costs or losses sustained or incurred by Nefolo arising directly or indirectly from the Customer Default.
9 CHARGES AND PAYMENT
9.1 The price for Goods:
9.1.1 will be the price set out in the Quote or, if no price is quoted, the price set out in Nefolo’s published price list as at the date of the Order; and
9.1.2 will be exclusive of all taxes and costs and charges of packaging, insurance, and transport of the Goods which will be invoiced to the Customer.
9.2 The charges for Services will be as set out in the Quote, the Service Specification or other agreed documentation.
9.3 Nefolo reserves the right to;
9.3.1 increase the charges for the Services at any time to reflect any increased cost to Nefolo in providing the Services due to:
(a) any factor beyond the control of Nefolo (including foreign exchange fluctuations, increases in taxes and duties, changes in manufacturer or third party supplier charges) in which case Nefolo will use reasonable endeavours to provide at least 90 days’ notice of any such increase or if shorter, the longest notice it is able to give; or
(b) any Customer Default or other failure to give Nefolo adequate or accurate information or instructions relevant to the Services to be delivered.
9.3.2 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 Nefolo that is due to:
(a) any factor beyond the control of Nefolo (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and changes in manufacturer or third party supplier charges);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Nefolo adequate or accurate information or instructions in respect of the Goods.
9.4 In respect of Goods, Nefolo will invoice the Customer on or at any time after completion of delivery. In respect of Services, Nefolo will invoice the Customer on or after commencement of the Services, or as may otherwise be specified in a Quote.
9.5 If under any Contract the charges are invoiced on a periodic basis (for example, monthly or annually recurring charges) the Customer acknowledges that it is contractually committed to paying those charges for the entire contract term unless the Contract expressly includes early termination rights. The exercise of any early termination rights will be subject to any early termination charges set out in the Contract. Any wrongful early termination or if payments fall due but remain unpaid, will be a material breach of the Contract and all sums unpaid for the remainder of the Contract terms will fall due for immediate payment and will be a debt due to Nefolo.
9.6 If under any Contract Goods and/or Services are provided and chargeable on variable metrics according to user numbers or usage levels (including but not exclusively where charges vary according to processing capacity or gigabytes of data storage capacity used) the charges are payable by the Customer at the rates and in the amounts set out in the Quote, EULA, Goods Specification or Services Specification as applicable for the term of the Contract. Figures for user numbers, usage levels or other variables that are contained in a Quote, Goods Specification or Services Specification as applicable will have been provided for guidance only, based on estimated levels of use by the Customer calculated in accordance with information provided by the Customer.
9.7. The Customer will pay each invoice submitted by Nefolo:
9.7.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by Nefolo and confirmed in writing to the Customer by a director of Nefolo; and
9.7.2 in full and in cleared funds to a bank account nominated in writing by Nefolo, and
9.7.3. time for payment will be of the essence of the Contract.
9.8 If the Customer fails to make a payment due to Nefolo under the Contract by the due date, then, without limiting Nefolo’s remedies under clause 14 (Termination), the Customer will 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 9.9 will accrue each day at 2% a year above the Bank of England’s base rate from time to time, but at 2% a year for any period when that base rate is at or below 0%.
9.9 All amounts due under the Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.10. All amounts due under the Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10 INTELLECTUAL PROPERTY RIGHTS
10.1 Subject to clause 10.2, all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) will be owned by Nefolo. Nefolo grants to the Customer a perpetual, worldwide, royalty-free non-exclusive, non-transferrable licence to use such Intellectual Property Rights in support of the Customer’s use of the Services.
10.2 Any Intellectual Property Rights derived, produced or developed by Nefolo exclusively for the Customer as part of the Services as set out in a Service Specification will vest in the Customer provided that the Customer has paid for the Services in full.
10.3 Each party’s Intellectual Property Rights existing at the Commencement Date of any Contract will remain the property of the respective party.
10.4 The Customer grants Nefolo a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Nefolo for the term of the Contract for the purpose of providing the Services to the Customer.
10.5 Where the Goods include software the Customer is licensed to use that software on the licence terms imposed by the relevant software owner or licensor governing use of the software.
10.6 The Customer indemnifies Nefolo against all actions, costs, claims, proceedings, accounts and damages arising from its breach of clause 12 (Confidentiality) and/or arising from any infringement or alleged infringement of any Intellectual Property Rights of a third party by reason of Nefolo performing its obligations under the Contract in accordance with the Customer’s instructions including any violation of any applicable laws or regulations by the Customer’s or any end user’s use of the Goods or Services.
11 DATA PROTECTION
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
12 CONFIDENTIALITY
12.1 Each party undertakes that it will not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
12.2.1 to its employees, officers, representatives 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 this agreement. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
12.2.2 s may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party will 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 this agreement.
13 LIMITATION OF LIABILITY
13.1 The limits and exclusions in this clause reflect the parties’ respective commercial positions and the Customer’s ability to make its own arrangements for the insurance of its risks.
13.2 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
13.3.1 death or personal injury caused by negligence;
13.3.2 fraud or fraudulent misrepresentation;
13.3.3 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
13.3.4 defective products under the Consumer Protection Act 1987.
13.4 Subject to clause 13.3 and the limitations on Nefolo’s liability in clauses 4.5 and 8.2.2 and in relation to warranties given under clauses 5 and 7, Nefolo’s aggregate liability to the Customer under or in connection with these Conditions shall be limited to the lesser of an amount equal to the Total Charges under the relevant Contract in the Contract Year in which the cause of action arose or £2 million.
13.5 This clause 13.5 sets out specific heads of excluded loss:
13.5.1 Subject to clause 13.3, the types of loss listed in clause 13.5.2 are wholly excluded by the parties.
13.5.2 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.
13.6 Nefolo has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.7 Unless the Customer notifies Nefolo that it intends to make a claim in respect of an event within the notice period, Nefolo will have no liability for that event. The notice period for an event will start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and will expire nine months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
13.8 This clause 13 will survive termination of the Contract.
14 TERMINATION
14.1 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:
14.1.1 he other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within thirty days after receipt of notice in writing to do so;
14.1.2 the other party 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), 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 [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction]
14.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.1.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.2 Without affecting any other right or remedy available to it, Nefolo 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.
14.3 Without affecting any other right or remedy available to it, Nefolo may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Nefolo if the Customer fails to pay any amount due under the Contract on the due date for payment, or the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, or Nefolo reasonably believes that the Customer is about to become subject to any of them.
15 CONSEQUENCES OF TERMINATION
15.1 On termination of the Contract:
15.1.1 the Customer will immediately pay to Nefolo all of Nefolo’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied, or yet to be supplied but which the Customer has committed to for a specific term, but for which no invoice has been submitted, Nefolo will submit an invoice, which will be payable by the Customer immediately on receipt;
15.1.2 the Customer will return all of Nefolo’s materials and Goods which have not been fully paid for. If the Customer fails to do so, then Nefolo may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer will be solely responsible for their safekeeping and will not use them for any purpose not connected with this Contract.
15.2 Termination or expiry of the Contract will 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.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry will continue in full force and effect.
16 FORCE MAJEURE
16.1 Neither party will 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) including without limitation: flood, earthquakes, war, terrorism, sabotage, revolution, invasion, strike, lock out or other industrial action taken by employees, quarantine, acts or orders of government, failure of power supply or other utilities. In such circumstances the affected party will notify the other party in writing of such event and will be entitled to a reasonable extension of the time for performing its obligations. If a Force Majeure Event continues for more than thirty days following notification the party receiving notice may terminate the Contract without prejudice to its other rights under the Contract.
17 GENERAL
17.1 Assignment and other dealings
17.1.1 Nefolo 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.
17.1.2 The Customer will 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 Nefolo
17.2 Notices.
17.2.1 Any notice given to a party under or in connection with the Contract will be in writing and willbe:
(a) 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
(b) sent by email to the address specified in the Quote.
17.2.2 Any notice will be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) 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 at the time recorded by the delivery service ;and
(c) 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 17.2.2(c), business hours means 0900 to 1730 on a Business Day.
17.2.3 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
17.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 17.3 will not affect the validity and enforceability of the rest of the Contract.
17.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law will prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or will 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.
17.6 Entire agreement.
17.6.1 The 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.
17.6.2. Each party acknowledges that in entering into the Contract it does not rely on, and will 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 will have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
17.6.3 Nothing in this clause will limit or exclude any liability for fraud.
17.7 Third party rights.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.
17.8 Variation. Except as set out in these Conditions, no variation of the Contract will be effective unless it is agreed in writing and signed by directors of both parties (or in the case of the Customer by persons with equivalent authority if unincorporated).
17.9 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 will be governed by and construed in accordance with the law of England and Wales.
17.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will 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.
Last Revision Date: 29th June 2021