Zenith Terms and Conditions of Sale (these “Terms and Conditions”)

1. DEFINITIONS AND INTERPRETATION
In this Contract:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
“Breach of Duty” has the meaning given to it in Clause 7.10.1;

Business Day” 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;

this “Contract” these Terms and Conditions, together with the terms of the relevant Order (except to the extent that the terms of the Order deviate from the Supply Agreement, and are not agreed in writing by Zenith);

Customer” the customer of Zenith whose details may be more particularly set out in the Order or Supply Agreement;

Event of Force Majeure”
has the meaning given to it in Clause 10.1;

Fee” the fee payable by Customer to Zenith for the supply by Zenith of the Product, as stipulated in the Supply Agreement (or if no such fee is agreed in writing or specified by Zenith, then this shall be the fee listed in Zenith’s published price list current at the date of the Order), and unless otherwise agreed by Zenith in the Supply Agreement the fee shall be the ex works price;

Liability” has the meaning given to it in Clause 7.10.2;

Order” the request by Customer to Zenith for the provision of particular Products, which shall be in accordance with the terms of the Supply Agreement;

Party” either Zenith or Customer;

Payment” has the meaning given to it in Clause 4.1;

Products” any of Zenith’s products provided or to be provided by Zenith to Customer pursuant to this Contract, as more particularly identified in this Contract or Supply Agreement;

Specification” the specification of the Product, as described in this Contract or Supply Agreement (or if no such specification is specified there, then this shall be the specification listed in Zenith’s or the relevant manufacturer’s published specification for the Product current at the date of the Order);

Supply Agreement” any written supply agreement between the Parties governing the long-term relationship concerning the supply of Products by Zenith to Customer;

Zenith” Zenith Hygiene Systems Limited, a company registered in England with number 03199148 whose registered office is at Zenith House, A1(M) Business Centre, Dixons Hill Road, Welham Green, Hertfordshire, AL9 7JE;

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 11) includes in electronic form.

 
2. CONTRACT
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 Zenith’s supply of all Products.  The signature by the Parties to the Supply Agreement and in any even the giving by Customer of any delivery instruction or the acceptance by Customer of delivery or collection 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 Except as otherwise described in this Contract, all materials and other particulars furnished by Zenith prior to the Supply Agreement, or in Zenith’s sales or marketing materials or other documents (including its catalogues, trade literature, brochures, quotations, price lists or website) or made orally by Zenith, 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.
2.5 Except as expressly provided otherwise in this Contract, no change to this Contract shall be binding unless it is agreed in writing by each of Zenith and Customer.
2.6 In the event of any conflict between the provisions of these Terms and Conditions and the rest of this Contract or the Supply Agreement, then the following order of precedence shall apply:
2.6.1 the Supply Agreement prevails over an Order and these Terms and Conditions; and
2.6.2 these Terms and Conditions prevail over the Order except to the extent that Zenith expressly agrees in writing that the Order prevails.
2.7 The Order shall contain:
2.7.1 a reference to the Product already described by Zenith (in the Supply Agreement);
2.7.2 the quantity of that Product ordered with Zenith;
2.7.3 the identity of Customer; and
2.7.4 details of the place and delivery and timeframe for delivery, to reflect the details already given by Zenith in the Supply Agreement or otherwise agreed in writing by Zenith.
2.8 Except for the information in an Order described in Clause 2.7, if Customer provides Zenith with an Order, purchase order, specification or other document for the Products, such document shall be purely for Customer’s administrative purposes only and shall not form part of this Contract.
2.9 Customer may submit the Order orally or in writing or any form, unless Zenith requires the Order to be in a particular form, in which case Customer shall ensure that the Order is in that form.
2.10 Customer shall ensure that the Order is on the same terms as the Supply Agreement and is made in accordance with the terms of the Supply Agreement (except to the extent that Zenith has agreed in writing to the contrary).  If the Parties agree that Zenith will proceed to provide the Products, then such provision shall be only on the understanding that any differences in the Order from the Supply Agreement shall have no effect unless the Parties expressly agree in writing.
2.11 It is Customer’s responsibility to ensure that the Order is complete and accurate and to point out to Zenith in writing anything which is incomplete or inaccurate.
2.12 Unless Zenith indicates a contrary method of acceptance in writing, this Contract shall be legally formed and the Parties shall be legally bound one full Business Day after Zenith’s receipt of an Order that conforms to Clause 2.7 provided that, within that one full Business Day following receipt, Zenith does not respond to Customer that such Order has been rejected.
2.13 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 Fee and any other sums due by Customer under this Contract, Zenith shall supply the Products referred to in the Order to Customer.
3.2 Zenith 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 and Zenith shall not have any Liability for any delays or failure to accurately perform its obligations:
3.2.1 if it has used those endeavours; or
3.2.2 if caused by any failure or delay on the part of Customer or Customer’s agents, staff, officers, employees, contractors or customers or by any breach by Customer of this Contract or any other contract between the Parties.
Any timeframe for delivery in a previous contract shall not be an indication of the timeframe for delivery in this Contract.
3.3 Packaging shall be in accordance with Zenith’s customary practices.  If Customer would like a special request for packaging, this is subject to Zenith’s consent and Customer shall pay the extra cost.
3.4 Partial delivery or performance shall be permitted.  Zenith may deliver and provide the Products in instalments.  Unless the Parties otherwise agree in writing, Zenith may invoice Customer for each instalment.
3.5 Delay, default or non-delivery of any instalment by Zenith shall not entitle Customer to cancel or terminate, and shall not affect, the remainder of this Contract or the Supply Agreement.
3.6 Unless otherwise agreed in writing between the Parties, this Contract is for delivery of the Products at the place stipulated as such in this Contract or Supply Agreement (or if no place stipulated, then Zenith’s normal location for despatch of the Products in the UK).
3.7 Notwithstanding the place of delivery, Zenith reserves the right to despatch the Products (which may be to a carrier selected by Zenith) and arrange and pay for the carriage to Customer’s premises (as Customer’s agent), and invoice Customer for those carriage and insurance costs at the same time as invoicing for the Products.  Any such delivery shall be after Zenith has given to Customer reasonable prior warning.
3.8 Zenith shall inform Customer of the estimated date on which the Products will be ready for delivery or collection.  Unless otherwise agreed in writing by Zenith, Customer shall give Zenith no less than three Business Days’ warning in advance of collection of the Products, which shall be during Zenith’s normal working hours.  Zenith reserves the right to refuse collection if Customer does not comply with the requirements of this Clause 3.8.
3.9 Customer shall ensure that it is ready for safe receipt (or, as the case may be, collection) of the Products without undue delay.
3.10 Where Zenith delivers the Products to Customer’s premises, Zenith shall deliver to the nearest entrance to the delivery address and at ground floor level 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 Zenith sufficient notice for reasonable arrangements for making deliveries.  Zenith may contact Customer with an estimated time for actual delivery, but Zenith is unable to give an exact time.
3.11 Customer may be required to sign a delivery note and other documentation upon delivery 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 (including the sound of breakages) and make a note of any obvious damage when signing.
3.12 On receipt of the Products, Customer shall check that the packaging and Products appear to be in a good state.
3.13 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.
3.14 Customer shall keep the Products fully insured on Zenith’s behalf with a reputable insurance company to the reasonable satisfaction of Zenith 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 Zenith.  If the Products are lost, damaged or destroyed, Customer shall hold the proceeds of insurance for and to the order of Zenith pending Payment.
3.15 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) Zenith shall not have any Liability as a result and Zenith may (without prejudice to any other right or remedy available to it) do all or any of the following:
3.15.1 sell the Products for Zenith’s account;
3.15.2 cancel this Contract as regards any Products that remain to be delivered or performed;
3.15.3 charge a reasonable storage fee for the Products; and
3.15.4 require Customer to indemnify Zenith for any and all losses, liabilities, claims, proceedings, judgments, damages, demands, actions, costs, charges, expenses, penalties and fines suffered or incurred by Zenith as a result of Customer declining or delaying.

4. TITLE
4.1 Notwithstanding delivery, title to and ownership of the Products shall not pass to Customer until Zenith has received in full (in cash or 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 Zenith from Customer on any account;
(“Payment”).
4.2 Until Payment, Customer shall:
4.2.1 hold the Products on a fiduciary basis as Zenith’s bailee;
4.2.2 hold the Products in good, saleable condition; and
4.2.3 keep an up-to-date list of the location of Zenith’s property and present this to Zenith 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 Zenith’s property.
4.3 Zenith may at any time until title passes under this Clause 4 without notice recover possession of the Products which are the property of Zenith.  Zenith may also require Customer at Customer’s cost, within three Business Days of Zenith’s request, to deliver up to Zenith or make available to Zenith for collection from a single accessible collection point as Zenith requires all Products which are the property of Zenith.  Customer hereby grants to Zenith for Zenith 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 Zenith against all claims, losses, damages, liabilities, costs and expenses so arising in exercising its rights under this Clause 4.3.
4.4 Zenith may recover payment for the Products notwithstanding that ownership of any of the Products has not passed from Zenith.
4.5 On termination of this Contract, howsoever arising, Zenith’s rights contained in this Clause 4 shall remain in effect.
5. CUSTOMER OBLIGATIONS
5.1 Customer shall be responsible for:
5.1.1 bringing to the attention of all subsequent handlers, users, site visitors, customers, recipients, employees, agents and subcontractors, any details supplied by Zenith (including potential hazards) about the Products;
5.1.2 ensuring that the Order and this Contract contain full and accurate information regarding the Products ordered.  This includes checking that the ordered Products have the correct description and applicable product number;
5.1.3 ensuring that the kind and type and class of Products meet its requirements and purposes and is suitable for all anticipated uses;
5.1.4 ensuring that the Products are properly stored and in the environment envisaged for storage of the Products (including temperature and any extra protection or packaging, and avoiding infestation, contamination or breakage);
5.1.5 ensuring that, following delivery by Zenith, the Products and packaging are used, stored and disposed of in accordance with all relevant laws, regulations, bye-laws and codes of practice and all licences, authorisations, approvals, consents and permissions, and with any instructions given by Zenith or the manufacturer; and
5.1.6 it co-operates with Zenith’s representatives and provides them with all reasonable information and assistance.
5.2 Without prejudice to any other rights or remedies of Zenith, Zenith shall have a general lien over all Customer’s property in Zenith’s possession in respect of all unpaid amounts due from Customer to Zenith.
5.3 Customer acknowledges that if the intended use of the Products is for a time critical purpose or if it is for a purpose that could involve significant or immeasurable loss if Products are not available, then it is Customer’s responsibility to take all steps necessary to minimise the risk of that, which may include:
5.3.1 placing the Order for the Products in sufficient time to allow for significant buffer time to avoid or minimise the impact of delays, default or non-delivery;
5.3.2 obtaining extra Products if necessary; and
5.3.3 obtaining sufficient insurance cover to cover the risk.

6. WARRANTY
6.1 Subject to the rest of this Clause 6, Zenith warrants that:
6.1.1 as at delivery the Products shall be undamaged, free from material defects in design, manufacture and materials and conform to the Specification; and
6.1.2 it shall deliver the Products in the quantities agreed in this Contract.
6.2 Zenith is not responsible for any services or products not expressly stipulated in this Contract that Zenith will provide.  Except for any matter upon which Zenith specifically agrees in writing with Customer to advise or do, Zenith shall not have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else (including on any laws, rules, regulations, bye-laws or codes of practice).
6.3 Zenith shall at its option replace or provide a refund for Products that are lost or damaged in transit to the place of delivery.  Zenith shall not have any Liability for loss of or damage to Products in transit or on delivery to the point of delivery unless Customer notifies Zenith within five Business Days:
6.3.1 after the expected 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 have any damage as would be obvious from such inspection as Zenith would reasonably expect; and also
unless Customer provides Zenith with Zenith’s delivery note number and such other information and documentation as Zenith reasonably requires at the same time as the notice.
6.4 Subject to Clause 6.5, Zenith shall at its option replace or provide a refund for delivered Products which are not in conformance with the warranty set out in Clause 6.1.1.
6.5 Zenith’s Liability for defective or damaged Products is subject to:
6.5.1 Customer notifying Zenith of any claim promptly upon discovery of the defect or damage and in any event within one month (other than anything that involves potential danger to health, in which case it shall be no more than one Business Day) of discovery, specifying with reasonable detail the way in which it is alleged that the Products do not conform to this Contract;
6.5.2 Customer allowing Zenith to take all control over decisions in respect of dealing with the issue including with third parties;
6.5.3 Customer having provided Zenith with Zenith’s delivery note number and such other information and documentation as Zenith reasonably requires at the same time as the notice in Clause 6.5.1;
6.5.4 Customer showing to Zenith’s reasonable satisfaction that the defect or damage is solely attributable to Zenith’s (or Zenith’s subcontractors’) defective materials or workmanship and not: (a) from normal use; or (b) any acts or omissions by anyone after delivery by Zenith (including the carrier);
6.5.5 the Products having not been: (a) misused or subjected to neglect, improper or inadequate care or carelessness (including being hit, dropped, kicked, knocked or pushed), or abnormal usage or storage conditions; or (b) involved in any accident or attempt at alteration, change or modification or inspection within the Product itself except by or on behalf of Zenith or as approved by Zenith or in accordance with Zenith’s instructions; or (c) dealt with or used or stored contrary to good trade practice or any oral or written instructions, advice or recommendation of Zenith;
6.5.6 Customer allowing Zenith’s representatives the opportunity to access, inspect, test, remove and replace the Products;
6.5.7 Customer having paid for the Products in full; and
6.5.8 upon Zenith’s request, Customer returning the defective or damaged Products carriage and insurance paid at Customer’s risk to Zenith’s premises or such other location stipulated by Zenith anywhere in the world and carefully packed to avoid damage in transit.  Unless and until Zenith inspects, repairs or receives the Products, Customer shall hold the Products safely and securely in good condition.
6.6 The warranty contained in this Clause 6 is specifically limited to Customer.  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.
6.7 If Customer makes an invalid claim under the warranty, Zenith may charge Customer for its fees and costs of examining, testing, storing and replacing the Products and dealing with the claim and removing and delivering the Products.
6.8 Except where expressly provided for within this Contract, Zenith 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. LIABILITY
7.1 This Clause 7 prevails over all other Clauses and sets forth the entire Liability of Zenith, 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 Zenith 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 any other Liability which cannot be excluded or limited by applicable law.
7.3 Subject to the Clause 7.2, Zenith 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 the Clause 7.2, Zenith 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 loss of business;
7.4.10 ex gratia payments;
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 Zenith 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 Liability for loss of or damage to tangible physical property caused by shall not exceed the amount of [£1,000,000].
7.6 Subject to Clauses 7.2 and 7.5, the total aggregate Liability of Zenith shall be limited to the greater of:
7.6.1 £500 or:
7.6.2 as applicable:
(a) in respect of a defective or damaged Product, if Zenith has breached the warranty in Clause 6 but has successfully replaced that defective or damaged Product in accordance with the remedies set out in Clause 6 for breach of that warranty, the lesser of [£5,000 or 20%] of the total sums paid and total other sums payable, in aggregate, by Customer to Zenith in respect of that defective or damaged Product; or
(b) in situations other than 7.6.2(a), in respect of a defective or damaged Product, the greater of [£500 and 120%] of the total sums paid and total other sums payable, in aggregate, by Customer to Zenith in respect of that defective or damaged Product.
7.7 Subject to Clauses 7.2 and 7.5, in respect of any Liability of Zenith other than may fall under Clause 7.6, the total aggregate Liability of Zenith shall be limited to [120%] of the total sums paid and total other sums payable, in aggregate, by Customer to Zenith in the 12 months prior to the claim in issue.
7.8 Zenith shall not have any Liability to the extent caused by any act, omission or default of Customer.
7.9 The limitation of Liability under Clauses 7.5, 7.6 and 7.7 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.
7.10 In this Clause 7:
7.10.1 “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
7.10.2 “Liability” means liability in or for breach of contract, Breach of Duty, 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).
8. FEES
8.1 The Fee for this Contract shall be as set out in the Supply Agreement.
8.2 Customer shall pay to Zenith the Fee and other sums due under this Contract.
8.3 Where Zenith requires a particular part of a Fee to be paid in advance of delivery of the Products, supply of the Products is conditional on Zenith first receiving the advanced Fee and any other sums due in cleared funds in full from Customer.
8.4 Unless otherwise stipulated in the Supply Agreement (or otherwise agreed between the Parties in writing), Zenith may issue invoices to Customer for the Fee (or the relevant part) and other sums due in connection with the Fee:
8.4.1 prior to delivery in the event of Customer having to pay any amounts in advance of delivery; or
8.4.2 at the time of delivering or making the Products available for delivery in the event that Zenith has agreed that Customer can pay following delivery.
8.5 All Fees and sums due under this Contract are exclusive of any value added tax or other sales, import and export duties or taxes (if applicable) which shall be payable in addition at the same time as payment of the Fees and other sums due.
8.6 Customer shall pay Zenith by any payment method reasonably stipulated by Zenith.
8.7 To the extent that Zenith has given Customer credit terms in writing from time to time, Customer shall pay Zenith in full for any sums due under this Contract within 30 days of the date of invoice (or such other period as Zenith may stipulate in writing).
8.8 Zenith may stipulate in writing a total credit limit of Customer from time to time.  If there are any amounts due or owing from Customer (and any other customers associated with Customer) to Zenith under any agreement between them (including under this Contract) in aggregate in excess of the total credit limit, Zenith may withhold delivery or making available for collection of Products until Customer shall pay such sum to Zenith so as to reduce the amounts due or owing below the credit limit.
8.9 Unless otherwise stipulated in this Contract or agreed in writing between the Parties, payment shall be in the currency in force in England from time to time.
8.10 Payment shall be deemed made when Zenith has received cleared funds in full.
8.11 Payment of all sums due to Zenith under this Contract shall be made by Customer in full without any set-off, deduction or withholding whatsoever.
8.12 If Customer is late in paying any part of any monies due to Zenith under this Contract or any other agreement between the Parties, Zenith may (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:
8.12.1 charge interest on the amount due but unpaid at the annual rate of interest set under Section 6 of 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
8.12.2 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
8.12.3 suspend the performance of this Contract and any other agreement between Zenith and Customer until payment in full has been made.

9. TERM AND TERMINATION
9.1 This Contract shall commence when it becomes legally binding in accordance with Clause 2.12 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:
9.1.1 Customer having paid for the Fee and all sums in full; and
9.1.2 Zenith having delivered all the Products to Customer.
9.2 Either Party may terminate this Contract immediately by notice in writing to the other Party if:
9.2.1 the other Party is in persistent breach of any of its obligations under this Contract or any other agreement between the Parties; or
9.2.2 the other Party is in material breach of any of its obligations under this Contract or any other agreement between the Parties which is incapable of remedy; or
9.2.3 the other Party fails to remedy, where capable of remedy, any material breach of any of its obligations under this Contract or any other agreement between the Parties after having been required in writing to remedy such breach within a period of no less than 30 days; or
9.2.4 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 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.
9.3 In any event, Zenith may terminate this Contract if Customer is at least 10 Business Days’ late in paying any sum due under this Contract or any other agreement between the Parties.
9.4 Termination of this Contract shall be without prejudice to any accrued rights or remedies of either Party.
9.5 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.
9.6 Upon termination of this Contract for any reason:
9.6.1 Zenith shall cease to perform this Contract; and
9.6.2 all outstanding Fees and any other sums shall become immediately payable, whether invoiced or not and
9.6.3 any accrued rebates will be void and not payable.

10. FORCE MAJEURE
10.1 Save for obligations in respect of payment of the Fee, 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, 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, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery 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.
10.2 Each of the Parties 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.
10.3 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.
10.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
10.5 Should any performance of obligations be delayed under this Clause 10, each Party shall nevertheless accept performance as and when the other shall be able to perform.
10.6 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.
10.7 If Zenith 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, Zenith may decide at its absolute discretion which contracts it will perform and to what extent.

11. NOTICES
11.1 Any notice required or authorised to be given under this Contract shall be in writing and may be served by personal delivery or by recorded delivery or by overnight 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 or at the address or facsimile number of the relevant Party last known to the other.
11.2 Any notice so given by post shall be deemed to have been served two Business Days after the same shall have been posted by recorded delivery or by overnight 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 or an answerback signal received.

12. ASSIGNMENT
12.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Contract, Zenith 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.  Zenith shall promptly give notice to Customer of any such assignment, transfer or novation.
12.2 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 Zenith (such consent not to be unreasonably withheld or delayed).

13. GENERAL
13.1 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.
13.2 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.
13.3 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.
13.4 A person who is not a Party to this Contract has no rights under any law to enforce any term of this Contract.
13.5 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.  The Parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim brought by Customer arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).  All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language.
Version: 003sb November 2011