1. Definitions and Interpritation
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 6.9.1;
"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 relevant terms of any Long Term Agreement, and:
(a) the relevant Order Acknowledgement (if any); or
(b) (if no Order Acknowledgement) the terms of the relevant Order (except to the extent that the terms of the Order deviate from the Quotation (if any) or from the Long Term Agreement (if any), and are not agreed in writing by Igloo);
"Customer" the customer of Igloo whose details may be more particularly set out in the Order, Order Acknowledgement or Long Term Agreement;
"Event of Force Majeure" has the meaning given to it in Clause 10.1;
"Fee" the fee payable by Customer to Igloo for the supply by Igloo of the Services, as specified in this Contract or Long Term Agreement (or if no such fee is specified there, it shall be the fee customarily charged by Igloo for those Services as at the date of the Order);
"Igloo" Total Temperature Management Limited (trading as “Igloo Thermo-Logistics”), a company registered in England under number 7092695 whose registered office is at Unit 5 Vale Industrial Park, Tolpits Lane, Watford, Hertfordshire, WD18 9QP;
"Liability" has the meaning given to it in Clause 6.9.2;
"Long Term Agreement" any written agreement between the Parties governing the long-term relationship concerning the supply of Services by Igloo to Customer;
"Order" the request by Customer (whether in writing or orally) to Igloo for the provision of particular Services, which shall be in accordance with the terms of any particular Quotation or Long Term Agreement;
"Order Acceptance" Igloo’s acceptance (whether in writing or orally) of Customer’s Order;
"Order Acknowledgement" the written communication (if any) which Igloo despatches to Customer (in response to Igloo's receipt of an Order), which shall either be the Order Acceptance or a record of the Order Acceptance and which may contain (together with any applicable Long Term Agreement) the particular details of any provision of particular Services and which shall reflect the commercial terms of the Quotation (if any) or Long Term Agreement (if any);
"Party" either Igloo or Customer;
"Point of Collection" the place at which Igloo receives the Products from or on behalf of Customer;
"Point of Destination" the place of Igloo’s delivery of the Products to Customer or Recipient or (as applicable) Customer’s or Recipient’s collection of the Products from Igloo;
"Products" the products agreed to be delivered (and, if applicable, stored in the meantime) by Igloo after Igloo takes receipt of them until they are delivered to (or made available for collection by) Customer or Recipient, as those products may be more particularly described in this Contract;
"Quotation" the quotation (if any) from Igloo to Customer detailing the Services that Igloo is willing in principle to supply to Customer for a particular order;
"Recipient" the person taking receipt of or collecting the Products from Igloo for or on behalf of Customer;
"Services" the services provided or to be provided by Igloo to the Customer under this Contract, more particularly described in this Contract, which may include any or all of the following:
(a) taking receipt of the Products;
(b) storing the Products;
(c) selecting the Products to be delivered;
(d) delivering the Products to the Point of Destination; all of which in appropriate temperatures until they are delivered to the Point of Destination, according to what is agreed between the Parties in this Contract;
"Transit" the volume of Products collected or delivered in a single vehicle under this Contract;
1.2 references to "Clauses" are to clauses of these Terms and Conditions;
1.3 headings are inserted for convenience only and shall not affect the interpretation or construction of this Contract;
1.4 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm or partnership;
1.5 references to "includes" or "including" or like words or expressions shall mean without limitation.
1.6 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification); and
1.7 references to "written" or in "writing" (except in respect of sending a notice in accordance with Clause 11) includes in electronic form.
2.1 The terms of this Contract apply to the exclusion of any terms and conditions submitted, proposed or stipulated by Customer. Except to the extent otherwise expressly agreed in writing by Igloo, these Terms and Conditions apply to Igloo's supply of all Services.
2.2 Save as expressly provided herein, this Contract 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 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 In the event of any conflict between the provisions of these Terms and Conditions and the rest of this Contract or any Long Term Agreement, then the following order of precedence shall apply:
2.4.1 the Long Term Agreement prevails over an Order, Order Acknowledgement and these Terms and Conditions; and
2.4.2 the Order and any Order Acknowledgement prevails over these Terms and Conditions; and
2.4.3 any Order Acknowledgement prevails over the Order.
2.5 Except as described in these Terms and Conditions, if Customer provides Igloo with an Order, purchase order, specification or other document for the Services, such document shall be purely for Customer's administrative purposes only and shall not form part of this Contract.
2.6 Customer shall ensure that the Order is on the same terms as any Quotation and Long Term Agreement and is made in accordance with the terms of the Quotation or Long Term Agreement (except to the extent that Igloo has agreed in writing to the contrary). If the Parties agree that Igloo will proceed to provide the Services, then such provision shall be only on the understanding that any differences in the Order from the Quotation, Order Acknowledgement or Long Term Agreement shall have no effect unless the Parties expressly agree in writing.
2.7 It is Customer's responsibility to ensure that the Quotation, Order and Order Acknowledgement are complete and accurate and to point out to Igloo in writing anything which is incomplete or inaccurate. Customer shall ensure that the specification for the Services contained in the Long Term Agreement, Quotation or Order Acknowledgement meets its particular requirements.
2.8 Unless Igloo indicates a contrary method of acceptance in writing, this Contract shall be legally formed and the Parties shall be legally bound when Igloo despatches its Order Acceptance to Customer. If the Order Acceptance is given orally by Igloo, the Order Acknowledgement shall be confirmation of the Order Acceptance already given. In any event, the giving by Customer of any delivery instruction shall constitute unqualified acceptance by Customer of these Terms and Conditions.
2.9 Except as expressly provided otherwise in this Contract, no change to this Contract shall be binding unless it is expressly agreed by both Parties and confirmed in writing by Igloo.
2.10 Igloo may update these Terms and Conditions from time to time in respect of Contracts that are not yet agreed as at the date of the update.
2.11 Igloo is not a common carrier. It provides the Services and accepts the Products in relation to this Contract only on the basis of the terms of this Contract.
2.12 Each Order constitutes a separate contract. There may be more than one contract between the Parties in force at the same time as this Contract.
3.1 In consideration for the payment of the Fee and any other sums due by Customer under this Contract, Igloo shall supply to Customer the Services described in this Contract.
3.2 Unless Igloo expressly agrees in writing to guarantee an exact delivery time (in which case, Igloo may charge a higher Fee for giving the higher standard of providing the guarantee), Igloo shall use its reasonable endeavours to perform its obligations within any timescales set out in this Contract and 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 an Event of Force Majeure; or
3.2.3 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 Partial delivery or performance shall be permitted. Igloo may deliver and provide the Products in instalments.
3.4 Delay, default or non-delivery of any instalment by Igloo shall not affect the remainder of this Contract.
3.5 Igloo shall inform Customer of the estimated date and time on which the Products will be ready for delivery or collection at their Point of Destination.
3.6 Customer shall ensure that the Recipient is ready for receipt (or, as the case may be, collection) of the Products without undue delay.
3.7 At either the Point of Collection or Point of Destination:
3.7.1 the person delivering the Products with the vehicle shall be responsible for off-loading the Products from the vehicle if they are hand-delivered from the vehicle; or
3.7.2 the person who uses equipment at the Point of Collection or Point of Destination to take the Products off the vehicle shall be responsible for off-loading the Products from the vehicle. The person using that equipment shall also be responsible for all consequences of use of that equipment and shall indemnify and keep indemnified the other Party against any and all losses, costs, expenses, demands, claims and liabilities suffered or incurred by the other Party (including for damage to property or death or personal injury) in relation to the use of that equipment.
3.8 Unless otherwise agreed in writing between the Parties, the person taking receipt of the Products shall conduct basic quality and quantity control checks at the Point of Collection or Point of Destination (as applicable). They shall check that the delivery appears to be in the correct quantity, there is no obvious damage and there is no obvious temperature non-conformity. However, at the time of delivery or collection, neither Party shall be required to conduct more stringent quality control or checks beyond that.
3.9 If Igloo agrees to provide any services beyond that which it has agreed to provide in this Contract (or beyond that which is customary to provide for such services) including for delivery beyond the expected delivery point at the Point of Destination, such additional services shall be entirely at Customer’s own risk and expense (at Igloo’s usual rates for providing such services).
3.10 Customer (or Customer’s Recipient) may be required to sign a proof of delivery note and other documentation reasonably required by Igloo upon delivery of the Products. The signing of any such documentation shall be evidence that the Products have been delivered and in the quantities stipulated in the documentation and that there has been no obvious damage or non-conformity.
3.11 All risk in the Products shall pass to Igloo upon delivery of the Products to Igloo at the Point of Collection and then to Customer upon delivery at the Point of Destination, provided that where delivery by Igloo or collection by Customer is delayed due to a breach by Customer of its obligations under this Contract risk shall pass at the date when delivery would have occurred but for that breach.
3.12 Unless otherwise expressly agreed in writing between the Parties, Customer shall keep the Products insured against risk of loss or damage from the time when the risk passes to Igloo until it passes to Customer for a value of £1,000 per Transit. If Customer requires more insurance than that, it shall either arrange for its own or request Igloo to obtain top-up insurance (which Igloo shall only be bound to do if it expressly agrees in writing and in return for which Igloo may charge a higher Fee).
3.13 If delivery or collection 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 6) Igloo shall not have any Liability as a result and Igloo may (without prejudice to any other right or remedy available to it) do all or any of the following:
3.13.1 seek to agree with Customer for an alternative time for collection or delivery taking into account Igloo’s other schedules (in which case, Igloo may charge the Fee again for each attempted delivery);
3.13.2 require Customer to collect the Products from Igloo’s premises;
3.13.3 if the Parties have not agreed what to do with the Products by the same time at the next Business Day following Igloo’s first attempt to discuss the matter with Customer (and also agreed to a timeframe for delivery or collection that Igloo considers reasonable in the circumstances), decide what to do with the Products (including destroying the Products, or selling the Products and accounting to Customer for the proceeds of sale less Igloo’s Fee and costs and expenses and loss of profit in relation to the Products and Services) after first having informed Customer of its proposed action;
3.13.4 cancel this Contract as regards any Products that remain to be delivered or collected; and
3.13.5 require Customer to indemnify Igloo for any and all losses, liabilities, claims, proceedings, judgments, damages, demands, actions, costs, charges, expenses, penalties and fines suffered or incurred by Igloo as a result of Customer declining or delaying (including taking any action under this Clause 3.13).
4. Customer's Obligations
4.1 Customer shall:
4.1.1 ensure that the packaging is sufficient and suitable for all aspects of Igloo’s provision of Services and for transport from the Point of Collection to the Point of Destination. The packaging shall in any event accord with any requirements that Igloo has already made known to Customer;
4.1.2 ensure that the packaging is properly labelled and addressed;
4.1.3 ensure that the Products are of the right size for the Services, do not leak or cause contamination and do not adversely affect or damage any other products or materials (including the vehicle)
4.1.4 ensure that the Services meet its requirements and purposes and are suitable for the Products;
4.1.5 co-operate with Igloo’s representatives, be present and available at all reasonable times and provide them with all reasonable information and assistance;
4.1.6 not unreasonably detain or retain any vehicle or equipment of Igloo without Igloo’s express prior written consent; and
4.1.7 provide proper, adequate, safe, comfortable and suitable environmental and operating conditions at Customer's or Recipient’s premises (including for parking and off-loading any Products from the relevant vehicle).
4.2 Customer acknowledges that if the intended use of the Products is for a time-critical purpose or if the Products are dangerous or have a specific requirement, that is entirely Customer’s responsibility and Customer shall take out sufficient insurance to cover that risk; except to the extent that Igloo expressly agrees in writing in this Contract to accept that risk or those additional requirements. In any event, in respect of any goods or substances that are or may be (in certain conditions) dangerous, Customer agrees to classify, pack, mark, label and document them appropriately and in any event in accordance with all applicable laws, regulations, bye-laws, codes of practices, licences, permits and authorisations.
4.3 Customer warrants that it is either the owner of the Products or entitled to enter into this Contract in relation to the transport or storage of the Products.
4.4 Without prejudice to any other rights or remedies of Igloo, Igloo reserves the right not to provide the Services, or to suspend provision of the Services, if it reasonably suspects that Customer is in breach of or not fully complying with this Clause 4.
4.5 Except to the extent that Igloo has any Liability, Customer agrees to indemnify and keep indemnified Igloo against all losses, liabilities, costs, expenses, damages, demands, claims, judgments and fines suffered or incurred by Igloo caused (directly or indirectly) by the act, omission, error, negligence, fault, default, mistake or wrongdoing of or on behalf of Customer or Recipient or by Igloo relying on Customer’s information, request, requirement or instruction.
5. Services Warranty
5.1 Subject to the rest of this Clause 5, Igloo warrants that it shall provide the Services:
5.1.1 with reasonable skill and care;
5.1.2 in the form and of the quantity in which it receives them at the Point of Collection; and
5.1.3 in accordance with the standards described in this Contract and to any compulsory industry-standard requirements, but (unless otherwise agreed in writing between the Parties) no other standard shall apply.
5.2 Customer acknowledges that Igloo cannot guarantee that the temperature in which the Products are stored will always remain within the range agreed by Igloo for the duration of time between the Point of Collection and Point of Destination, as Igloo will need to spend a reasonable amount of time transferring the Products on or off or between vehicles or storage facilities.
5.3 Igloo is not responsible for any services or products not expressly stipulated in this Contract that Igloo will provide. Except for any matter upon which Igloo specifically agrees in writing with Customer to advise or do, Igloo shall not have any Liability for advising on, or failing to advise on, or doing, or failing to do, anything else.
5.4 Igloo shall not have any Liability to the extent caused by Igloo's compliance with and reliance on Customer's instructions, requirements or requests.
5.5 Customer acknowledges that it is reasonable to make known to Igloo any complaints over quality or quantity within one Business Day of the time at which the Products are purportedly delivered to the Point of Destination. Customer therefore agrees to make known any such complaint on or before the corresponding time two Business Days after the time at which delivery or collection of the Products purportedly takes place at the Point of Destination. Customer agrees not to make any complaint on or after that time. Customer agrees to make a claim in respect of the relevant Products only if it makes a complaint to Igloo within the timeframe described in this Clause 5.5.
5.6 Igloo's Liability for faulty Services is subject to:
5.6.1 Customer informing Igloo of any claim promptly upon discovery of the defect or damage in accordance with Clause 5.5, specifying with reasonable detail the way in which it is alleged that the Services do not conform to this Contract;
5.6.2 Customer having provided Igloo with Igloo's delivery note number and such other information and documentation as Igloo reasonably requires at the same time as the notice in Clause 5.6.1;
5.6.3 Customer showing to Igloo's reasonable satisfaction that the problem is solely due to Igloo's (or Igloo's subcontractors') faulty Services;
5.6.4 the Products having not been misused or subjected to neglect, improper or inadequate care or carelessness either before or after Igloo’s provision of the Services;
Customer allowing Igloo’s representatives the opportunity to access and inspect the Products; and
5.6.6 Customer having paid for the Fee in full.
5.7 The warranty contained in this Clause 5 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.
5.8 If Customer makes an invalid claim under the warranty, Igloo may charge Customer for its fees and costs in dealing with the claim.
5.9 Except where expressly provided for within this Contract, Igloo 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 Services.
6.1 This Clause 6 prevails over all other Clauses and sets forth the entire Liability of Igloo, and the sole and exclusive remedies of Customer, in respect of:
6.1.1 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
6.1.2 otherwise in relation to this Contract or entering into this Contract.
6.2 Igloo does not exclude or limit its Liability for:
6.2.1 its fraud; or
6.2.2 death or personal injury caused by its Breach of Duty; or
6.2.3 any breach of the non-excludable obligations implied by law as to having title to supply goods; or
6.2.4 any other Liability which cannot be excluded or limited by applicable law.
6.3 Subject to Clause 6.2, Igloo does not accept and hereby excludes any Liability for Breach of Duty other than any Liability arising pursuant to the terms of this Contract.
6.4 Subject to Clause 6.2, Igloo shall not have any Liability in respect of any:
6.4.1 indirect or consequential losses, damages, costs or expenses;
6.4.2 loss of actual or anticipated profits;
6.4.3 loss of contracts;
6.4.4 loss of use of money;
6.4.5 loss of anticipated savings;
6.4.6 loss of revenue;
6.4.7 loss of goodwill;
6.4.8 loss of reputation;
6.4.9 loss of business;
6.4.10 loss of operation time;
6.4.11 loss of opportunity; or
6.4.12 loss of, damage to or corruption of, data;
whether or not such losses were reasonably foreseeable or Igloo or its agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 6.4.2 to 6.4.12 apply whether such losses are direct, indirect, consequential or otherwise.
6.5 Subject to Clauses 6.2 and 6.6, the total aggregate Liability of Igloo howsoever arising for any one Order shall be limited to the lesser of (i) the limits set out in the “Limitation of Liability” Clause (11) of the Road Haulage Association Limited CONDITIONS OF CARRIAGE 2009 and (ii) £250, but Igloo shall not have Liability more than once in respect of the same unit of Product.
6.6 If the affected Products under this Contract are not within a Transit (including, for example, due to failure by Igloo to collect or receive the Products at the Point of Collection) and so Clause 6.5 does not apply, the total aggregate Liability of Igloo howsoever arising for any one Order shall be limited to the lesser of (i) the limits set out in the “Limitation of Liability” Clause (11) of the Road Haulage Association Limited CONDITIONS OF STORAGE 2009 and (ii) £250, but Igloo shall not have Liability more than once in respect of the same unit of Product.
6.7 The limitation of Liability under Clauses 6.5 and 6.6 have 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.
6.8 Igloo shall not have any Liability to the extent caused (directly or indirectly) by the act, omission, error, negligence, fault, default, mistake or wrongdoing of or on behalf of Customer or Recipient.
6.9 In this Contract:
6.9.1 "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
6.9.2 "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).
7.1 Customer shall pay to Igloo the Fee and other sums due under this Contract.
7.2 Except to the extent otherwise provided in the Quotation or Long Term Agreement or otherwise agreed by Igloo in writing, Customer shall pay Igloo for the Fee and any other sums due under this Contract in advance of Igloo’s provision of the Services.
7.3 Where Igloo agrees in writing to extend any credit terms to Customer:
7.3.1 unless otherwise expressly agreed in writing by Igloo, all payments shall be made within 30 days of the date of Igloo’s invoice; and
7.3.2 such credit terms shall be subject to any particular credit limits stipulated in writing by Igloo from time to time and may also be withdrawn by Igloo without notice.
7.4 Where Igloo requires any of the Fee to be paid in advance of the Services, provision of the Services is conditional on Igloo first receiving the advanced Fee and any other sums due in cleared funds in full from Customer.
7.5 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 Fee and other sums due.
7.6 Customer shall pay Igloo by any payment method reasonably stipulated by Igloo.
7.7 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.
7.8 Time for payment shall be of the essence.
7.9 Payment shall be deemed made when Igloo has received cleared funds in full.
7.10 Payment of all sums due to Igloo under this Contract shall be made by Customer in full without any set-off, deduction or withholding whatsoever.
7.11 If Customer is late in paying any part of any monies due to Igloo under this Contract or any other agreement between the Parties, Igloo 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 either or both of the following:
7.11.1 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
7.11.2 suspend the performance of this Contract and any other agreement between the Parties until payment in full has been made.
8.1 Igloo shall have a:
8.1.1 particular lien on the Products in respect of which Igloo provides the Services under this Contract; and
8.1.2 general lien against Customer for sums unpaid on any invoice, account or contract whatsoever.
8.2 If the lien (whether particular or general) is not satisfied within a reasonable time, Igloo may sell any or all of the Products as agent for the owner and apply the proceeds towards any sums unpaid and the expenses of the retention, insurance and sale of the Products and Igloo shall (upon accounting to Customer for any balance remaining) be discharged from all Liability whatsoever in respect of the Products.
9. Term and Termination
9.1 This Contract shall commence when it becomes legally binding in accordance with Clause 2.8 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 Igloo having provided all the Services 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 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 Termination of this Contract shall be without prejudice to any accrued rights or remedies of either Party.
9.4 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.
9.5 Upon termination of this Contract for any reason:
9.5.1 Igloo shall cease to perform this Contract; and
9.5.2 all outstanding Fees and any other sums shall become immediately payable, whether invoiced or not.
10. Force Majeure
10.1 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, highway authorities, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, seizure or forfeiture, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, unusual traffic volumes, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions (including cold, heat, wind, rain, snow, ice or fog), earthquake, volcano, natural disaster, accident, collapse of building structures, failure of machinery (other than used by the relevant Party) or third party computers or third party hardware, 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"").
10.2 Each Party agrees to inform the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
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 (including, in the case of Igloo, the costs of re-performing the Services when performance becomes reasonably possible).
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 Each Party shall act reasonably if it is affected by the Event of Force Majeure, including reasonably co-operating with the other Party’s request to provide or receive Services.
10.7 If the Event of Force Majeure continues without a break for more than one week, 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 (except that Igloo shall refund any Fee paid in advance to Igloo for the Services not performed due to the Event of Force Majeure).
10.8 If Igloo has contracted to provide identical or similar services to more than one customer and is prevented from fully meeting its obligations to Customer by reason of an Event of Force Majeure, Igloo may decide at its absolute discretion which contracts it will perform and to what extent.
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 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 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.
12.1 Subject to any assignee (in the case of an assignment) confirming in writing to be bound by the provisions of this Contract, Igloo 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. Igloo 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 Igloo (such consent not to be unreasonably withheld or delayed).
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). Nothing in this Clause 13.5 shall limit the right of Igloo to take proceedings against Customer in any other court of competent jurisdiction. All dealings, correspondence and contacts between the Parties shall be made or conducted in the English language.
Version: 002. Jan 2010