Terms of Sale
1. DEFINITION AND INTERPRETATION
1.1 The definitions and rules of interpretation in this Condition apply in these Conditions.
Additional Charge: means a charge payable by the Customer for additional services outside the scope of the Services in accordance with Cod Steaks prevailing rates for such services including without limitation, the supply of spare parts and goods.
Agreement: means the Service & Maintenance Agreement (including its Schedules) for the Services entered into by Cod Steaks and the Customer, and includes these Conditions.
Conditions: means these General Conditions of Service & Maintenance which are incorporated into and form part of the Agreement.
Customer: the person, firm or company named on the cover page of the Agreement.
Delivery Point: the place where delivery of the Goods is to take place under Condition 4.
Equipment: means the goods, services and equipment listed in the quotation.
Fee: means the Fee payable for the Services as specified under Fees and Payments of the Agreement.
Goods: any goods agreed in the Contract to be supplied to the Customer by Cod Steaks (including any part or parts of them).
Party: means the Customer or Cod Steaks, and Parties means both of them.
Services: means the maintenance and other services provided in respect of the Equipment defined in these Conditions.
Service Time: means the period set out in Clause 16 herein.
Site: means the premises where the Services are provided.
Term: means the duration of the Agreement as set out within the Agreement.
1.2 Words in the singular include the plural and in the plural, include the singular.
1.3 Condition headings do not affect the interpretation of these Conditions.
1.4 Cod Steaks shall provide Services to the Customer in accordance with this Agreement. In the event of any inconsistency between these conditions and other documents forming part of the Agreement, the following order of priority shall apply:
1.4.1 Any written agreement between the Parties where the Parties agree that any of the provisions in these Conditions should be superseded with an express reference to this Clause 1.4.
1.4.2 Cod Steaks quotation and documents (if any) incorporated by express reference to this Clause 1.4.
1.4.3 This Agreement; and
1.4.4 These Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.2 the Contract shall be on these Conditions to the exclusion of all other terms and Conditions (including any terms or Conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 These Conditions apply to all Cod Steaks’ sales and any variation to these Conditions and any representations about the Services shall have no effect unless expressly agreed in writing and signed by a director or duly authorised employee of Cod Steaks.
2.3 The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Cod Steaks which is not set out in the Contract. Nothing in this Condition shall exclude or limit Cod Steaks liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods or Services by the Customer from Cod Steaks shall be deemed to be an acceptance of the relevant quotation of Cod Steaks by the Customer to buy Services subject to these conditions.
2.5 The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
3. DESCRIPTION & SPECIFICATION
3.1 Any quotation provided by Cod Steaks shall be valid for 30 days from the date stated on the quotation.
3.2 The description and quantity of the Services shall be as set out in Cod Steaks' quotation, subject to the other provisions of these Conditions.
3.3 All samples, drawings, descriptive matter, specifications, mouldings and advertising issued by Cod Steaks and any descriptions or illustrations contained in Cod Steaks’ catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract and this is not a sale by sample.
3.4 Cod Steaks makes no representation and gives no warranty in respect of the source or origin of manufacture or production of the Services of any part thereof.
3.5 Items supplied by the Customer for use under the Contract shall be of suitable quality and shall be provided free of charge in sufficient quantities and at the times required by Cod Steaks.
4. DELIVERY
4.1 The method of, dates and other particulars relating to delivery shall be as agreed in writing between the parties.
4.2 Any dates specified by Cod Steaks for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.3 The Customer’s premises must be in good order and ready to receive the Ordered Goods.
4.4 If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or Cod Steaks is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
4.4.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by Cod Steaks 's negligence);
4.4.2 the Goods shall be deemed to have been delivered; and
4.4.3 Cod Steaks may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, administration, workshop labour, workshop storage space and insurance). Should the customer not wish to proceed with the associated costs of storage, the customer will need to arrange for the collection and storage of all items within a 30-day period.
5. NON-DELIVERY
Any liability of Cod Steaks for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. RISK/TITLE
6.1 The Goods are at the risk of the Customer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Customer until Cod Steaks has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to Cod Steaks from the Customer on any account.
6.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as Cod Steaks’ bailee;
6.3.2 store the Goods (at no cost to Cod Steaks) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as Cod Steaks' property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory Condition and keep them insured on Cod Steaks' behalf for their full price against all risks to the reasonable satisfaction of Cod Steaks. On request the Customer shall produce the policy of insurance to Cod Steaks.
6.4 The Customer’s right to possession of the Goods shall terminate immediately if:
6.4.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
6.4.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Cod Steaks and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
6.4.3 the Customer encumbers or in any way charges any of the Goods.
6.5 Cod Steaks shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Cod Steaks.
6.6 The Customer grants Cod Steaks, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
6.7 On termination of the Contract, howsoever caused, Cod Steaks' (but not the Customer’s) rights contained in this Condition 6 shall remain in effect.
7. PRICE
7.1 The price for the Goods and Services shall be as agreed in writing between the parties.
7.2 Notwithstanding Condition 7.1, Cod Steaks reserves the right to increase prices due to increased costs, including (but not limited to) those relating to exchange rates, labour, materials and transport.
7.3 The price for the Goods and Services shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods and Services.
8. PAYMENT
8.1 Subject to Condition 8.4, payment of the price for the Goods and Services is due in pounds sterling as agreed in writing by Cod Steaks at the front of this document.
8.2 Payment terms will be specific and specified on Cod Steaks' estimates, quotations and invoices. Time for payment shall be of the essence.
8.3 Cod Steaks will supply one invoice for the Goods and Services notwithstanding that the consignment may comprise more than one instalment.
8.4 No payment shall be deemed to have been received until Cod Steaks has received cleared funds.
8.5 All payments payable to Cod Steaks under the Contract shall become due immediately on its termination despite any other provision.
8.6 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Cod Steaks to the Customer.
8.7 If the Customer fails to pay Cod Steaks any sum due pursuant to the Contract, the Customer shall be liable to pay interest to Cod Steaks on such sum from the due date for payment at the annual rate of
3% above LIBOR, accruing daily until payment is made, whether before or after any judgment. Cod Steaks reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.8 Legal title to the Goods shall not pass to the Client until payment has been received in full.
9. QUALITY
9.1 Cod Steaks warrants that (subject to the other provisions of these Conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.2 Cod Steaks shall not be liable for a breach of the warranty in Condition 9.1 if:
9.2.1 the Customer has damaged the Goods in operation or allowed the Goods to be damaged by a third party; or
9.2.2 the defect arises because the Customer failed to follow Cod Steaks’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
9.2.3 the defect arises as a result of design errors in the Goods, where Cod Steaks has manufactured the Goods to a design of the Customer; or
9.2.4 the Customer alters or repairs such Goods without the written consent of Cod Steaks.
9.3 Subject to Condition 9.2, if any of the Goods do not conform with the warranty in Condition 9.1 Cod Steaks shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Cod Steaks so requests, the Customer shall, at the Customer’s expense, return the Goods or the part of such Goods which is defective to Cod Steaks.
9.4 If Cod Steaks complies with Condition 9.3 it shall have no further liability for a breach of the warranty in Condition 9.1 in respect of such Goods.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The sale of the Goods and Services and the publication of any information or technical data relating thereto may incorporate products which are the subject of third party intellectual property rights and Cod Steaks gives no warranty that the use of the Goods by the Customer will not constitute an infringement of third party intellectual property rights.
10.2 All intellectual property rights in the Goods and Services, whether owned by Cod Steaks or a third party shall remain with Cod Steaks or that third party and nothing in these Conditions shall be construed as transferring or permitting the transfer of any intellectual property rights to the Customer.
10.3 The Customer shall indemnify Cod Steaks and its suppliers against all royalties, actions, claims, costs and expenses and other payments in respect of any patents, registered designs or other rights which may be claimed as a result of the Goods being made by Cod Steaks according to designs or specifications supplied by the Customer. The Customer shall indemnify Cod Steaks and its suppliers against all actions, claims expenses and costs in connection with any infringement or alleged infringement or any patent or registered design or other right in the manufacture, use or sale of the Goods. The Customer shall defend or assist in the defence at its own expense any proceedings which may be so brought.
10.4 Unless otherwise stated, Cod Steaks will retain the ownership of all moulds unless these have been paid for within the manufacturing process.
10.5 Cod Steaks have the rights to publish images and marketing material of projects unless under a customer NDA or otherwise requested by the customer. Cod Steaks also have the right to declare our involvement with a project/customer to other stakeholders.
11. LIMITATION OF LIABILITY
11.1 The following provisions set out the entire financial liability of Cod Steaks (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.1.1 any breach of these Conditions;
11.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
11.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, Conditions and other terms implied by statute or common law (save for the Conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions excludes or limits the liability of Cod Steaks:
11.3.1 for death or personal injury caused by Cod Steaks' negligence; or
11.3.2 for any matter which it would be illegal for Cod Steaks to exclude or attempt to exclude its liability; or
11.3.3 for fraud or fraudulent misrepresentation.
11.4 Subject to Condition 11.3 Cod Steaks' total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price.
11.5 Subject to Condition 11.3, Cod Steaks shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12. INDEMNITY
The Customer shall indemnify Cod Steaks against any losses, costs or damages incurred by Cod Steaks pursuant to any claim by a third party relating to the Customer’s use of the Goods (including but not limited to the Customer’s export or resale of the Goods).
13. ASSIGNMENT
Cod Steaks may assign the Contract or any part of it to any person, firm or company.
The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of Cod Steaks.
14. FORCE MAJEURE
Cod Steaks reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Cod Steaks including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Customer shall be entitled to give notice in writing to Cod Steaks to terminate the Contract.
15. GENERAL
15.1 The Customer is responsible for any licenses or claims or consents necessary to export the Goods from the United Kingdom, or to import the Goods into the country to which the Goods are to be delivered.
15.2 The Customer will take over full responsibility and will fulfil all obligations for taking back and/or recycling electrical and electronic equipment according to any applicable European directives or local laws relating to the use, recycling and disposal of waste electrical and electronic. The Customer will exempt Cod Steaks from all legal obligations for taking back and/or recycling and from all possible claims of third parties in connection with these obligations and will fulfil these obligations itself on its own costs, if the Customer has not been able to transfer these legal obligations to its customers.
15.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15.4 Failure or delay by Cod Steaks in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
15.5 Any waiver by Cod Steaks of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
15.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
15.7 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, and the parties submit to the exclusive jurisdiction of the English courts.
15.8 Cod Steaks to have the right to reschedule project delivery and installation, should the customer
delay the agreed project schedule as per this contract.
15.9 Cod Steaks will provide up to three design revisions for signoff of an exhibit as standard. Any further will require design time to be charged to the customer as an addition. If there are any changes made by the customer or third-party contractor to the design brief upon which our designs and costings have been based, then Cod Steaks are eligible to charge these additional costs to the customer.
15.10 All sign offs must be issued promptly by the Customer in order to meet deadlines set.
16. SERVICE TIME
16.1 The Services shall be performed within the Service Time, which shall be between 8.30 am and 5.30 pm Mondays to Fridays, Public Holidays excluded unless otherwise agreed. Response times for corrective maintenance services shall be agreed between the Parties in advance.
17. MODIFICATIONS, CHANGES AND ENHANCEMENTS
17.1 During the Term, Cod Steaks shall at their discretion undertake such modification, changes or enhancements to the Equipment and/or implement any practice, procedure or measure, which is deemed by Cod Steaks to be necessary and/or to prevent or minimise damage to the Equipment.
17.2 Cod Steaks before undertaking any such modification, change or enhancement etc as mentioned in 17.1 above, explain to the Customer, if Cod Steaks deems necessary, the need and cost (where applicable) of such modification, change or enhancement. The Customer shall pay any Additional Charge for such modification, change or enhancement according to Clause 8.1.
18. EXCLUSIONS & ADDITIONAL SERVICES
18.1 THE SERVICE DO NOT INCLUDE: -
a. Repair of damage arising from the act, error, fault, neglect, misuse, improper operation or omission of the Customer or its servants, agent, contractors or invitees or any person whether or not that person is under the control or direction or authority of the Customer.
b. Repair of damage arising from changes, alterations, additions or modifications of the Equipment by a person other than Cod Steaks.
c. Repair of damage caused by incorrect power supply, failure, of electrical power, air-conditioning, humidity control or any environmental factor.
d. Repair of damage caused by the operation of the Equipment other than in accordance with the specifications or otherwise than in accordance with the direction, instruction or recommendations of Cod Steaks or its personnel.
e. Repair of damage arising from the re-installation, moving or removing of the Equipment by a person other than Cod Steaks.
f. Repair of damage caused by any circumstances beyond Cod Steaks reasonable control.
g. Furnishing or supplying maintenance of accessories, attachments, supplies, spare parts, consumables or items associated with the Equipment unless otherwise previously agreed between the Parties.
h. Transportation charges, whether for air, sea or land transport for Services carried on within or outside the UK.
i. Work performed outside Cod Steaks Service Time Clause 16.
j. The cost of any Equipment or part whether spare part, consumable or otherwise supplied, unless otherwise previously agreed between the Parties.
k. The upgrading of or retrofitting of improvements or major modification to the Equipment.
18.2 Cod Steaks must at the Customer’s option provide any of the services referred to in Clause 18.1 or any other services requested by the Customer, at the relevant Additional Charge. Cod Steaks shall inform the Customer of the associated Additional Charge, and the Customer shall accept the Additional Charge in writing before the services are performed. The Additional Charge shall be payable by the Customer according to Clause 8.1.
19. CUSTOMER RESPONSIBILITIES
19.1 The Customer shall undertake to release all the Equipment which is being maintained by Cod Steaks from all operational demands when so requested to do so by Cod Steaks in order for Cod Steaks to perform the Services. Alternatively, the Customer shall ensure that Cod Steaks personnel have full and safe access to the Equipment at all reasonable times for the purpose of providing the Services. The Customer shall also ensure that such access conforms to any specifications issued by Cod Steaks from time to time.
19.2 The Customer will ensure the Cod Steaks personnel or representatives are provided a safe and secure work environment at all times while they are on Site to enable work to be carried out.
19.3 The Customer shall provide on request a suitably qualified or informed representative, agent or employee to accompany Cod Steaks personnel when providing the Services or to render such assistance or to give such advice as will enable Cod Steaks personnel to exercise unrestricted access to the Site and the Equipment and otherwise to perform the Services effectively.
19.4 The Customer shall supply auxiliary facilities and services when requested by Cod Steaks as necessary for the provision of the Services. Where the Customer does not provide the auxiliary facilities and services, Cod Steaks shall be entitled to procure such auxiliary facilities and services and seek full reimbursement from the Customer provided Cod Steaks has given the Customer written notice of the non-compliance and the Customer has failed to remedy the non-compliance within the time specified in the notice. The auxiliary facilities and services shall include without limitation:
a. Adequate telephone communications facilities;
b. Lighting for all work areas;
c. Main and auxiliary electrical power necessary for the operation of all equipment, capable of being isolated either by isolating switches, removal of fuses or other means to the reasonable satisfaction of Cod Steaks;
d. 240-volt, 50 cycle single phase at 3 pin general purpose outlets at suitable locations;
e. Suitable dry lockable storage space for the storage of machinery, equipment, materials and tools;
f. Suitable rooms on or adjacent to the Site with adequate air-conditioning, lighting, washing, toilet and drinking water facilities for the use of Cod Steaks personnel or representatives; and or
g. Lifting machinery or devices, timber, planking, strutting etc.
19.5 The Customer shall upon Cod Steaks request furnish sufficient information which, in Cod Steaks opinion, will enable the Services to be carried out forthwith and without interruption. The Customer shall be responsible for and bear the cost of any modification to the scope of the Services arising from any discrepancy, error or omission in any drawings, specification or other information supplied or approved by the Customer.
19.6 All such assistance to be provided by the Customer under this Clause 19 or in general shall be at the Customer’s sole cost and expense.
19.7 Nothing in the Agreement shall relieve the Customer from its obligations to perform normal day to day maintenance on the Equipment as per the Operator’s Manuals supplied by the manufacturer and/or Cod Steaks including but not restricted to normal cleaning procedures, checks and adjustments designed for operational use.
19.8 During the continuance of this Agreement, the Customer shall not carry out or attempt to carry out modifications to, repair of, experiments on, or maintenance of the Equipment other than day to day maintenance and the Customer shall not permit any other person expect Cod Steaks personnel or representatives to carry out such work unless prior written approval has first been obtained from Cod Steaks.
19.9 It is the customers responsibility to inform Cod Steaks as the point of project brief if a third party H&S inspection body will be appointed for the project. This also includes whether structural engineer calculations and signoffs of designs are required. Should such services be required, all associated costs must be covered/ transferred to the customer. Cod Steaks will be designing to the assigned brief, and any modifications or impact to works due to late information that such inspection services are needed, are to be paid by the customer.
19.10 The customer should inform Cod Steaks if the installation/ delivery site will require Cod Steaks installation team to have CSCS cards or other such qualifications. Such costs to transferred to customer, should this not have been notified at time of costing.
19.11 Cod Steaks will not be held accountable for failures with the exhibit or additional labour time where we have been asked to work with our install equipment requested by the customer.
19.12 Cod Steaks installers must be given free, unobstructed and safe access to the installation area.
19.13 Any lost installation time due to adverse job site conditions, will be payable by the Customer.
20. REPLACEMENT AND SPARE PARTS
20.1 In the case of Services for which an Additional Charge is payable by the Customer for replacement of spare parts, title in such replacement or spare parts shall pass to the Customer only upon full payment of the Additional Charge. Unless otherwise agreed in writing between the Parties, risk of damage to or loss of replacement spare parts shall pass to the Customer as soon as they are delivered to the Customer’s designated premises.
20.2 Where parts of the Equipment have been replaced by or upon the instruction, recommendation or direction of Cod Steaks or otherwise, title in the replaced parts will pass to Cod Steaks upon removal from the Equipment.
20.3 Cod Steaks may from time to time require the Customer to purchase and store at the Site such spare parts as Cod Steaks considers necessary for the provision of effective Services.
20.4 Cod Steaks will not be liable for any failure or delay in providing the Services where such failure or delay is the direct or indirect result of the failure of the Customer to comply with Clause 20.3.
20.5 Save as aforesaid, the property of and risk in the Equipment is not affected by the provisions contained in the Agreement.
21. MAINTENANCE EQUIPMENT
21.1 Cod Steaks shall provide all necessary tools, equipment, testing and diagnostic apparatus which Cod Steaks requires in order to carry out the Services unless otherwise agreed.
22. CUSTOMER RECORDS & SERVICE REPORTS
22.1 The Customer shall keep such records relating to the use and performance of the Equipment as may be directed by Cod Steaks from time to time.
22.2 The Customer shall permit Cod Steaks to have access to such records at all reasonable times, including all periods during which the Services are being performed or preparations are being made for the Services to be performed.
23. WARRANTIES
23.1 Cod Steaks warrants that:
a. It will provide the Services in a proper, workmanlike and professional manner at all times;
b. It will exercise the reasonable standards of skill, care and diligence in the performance of the Services;
c. It will retain a sufficient number of personnel with the expertise required to provide the Services; and
d. Its personnel possess the required skills and experience required to provide the Services.
23.2 The above warranties shall not replace or supersede the warranty applicable to the Equipment as specified in any sale and purchase agreement.
24. TERMINATION AND/OR SUSPENSION OF SERVICES
24.1 In addition to Cod Steaks right to terminate the Agreement under Clause 7.3, Cod Steaks shall be entitled to (i) terminate the Agreement or suspend any further Services under the Agreement without any liability to the Customer, and (ii) demand that the Fee, Additional Charges or balance thereof shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, and (iii) retain any security or monies against the assessed loss and damages, if any, suffered by Cod Steaks, in the event that:
a. The Customer is in breach of the Agreement; or
b. The Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or has an order made or resolution passed for such winding-up or shall otherwise become insolvent or make such a proposal, assignment or arrangement for the benefit of its creditors or have a receiver or manager appointed over its affairs or have an application made to court for the management order; or
c. An encumbrancer takes possession of, or a receiver is appointed over. Any of the property or assets of the Customer; or
d. The Customer ceases, or threatens to cease, to carry on business; or
e. There is a change in control of the Customer which in the reasonable opinion of Cod Steaks adversely affects the position, rights or interests of the Customer. (For the purpose of this sub-clause, “control” means the ability to direct the affairs of another whether by virtue of Agreement, ownership of shares, or otherwise howsoever); or
f. In the reasonable opinion of Cod Steaks, there occurs a material change in the financial position of the Customer which is likely to affect the Customer’s ability to perform its obligations under the Agreement; or
g. Cod Steaks reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
24.2 Termination of the Agreement by Cod Steaks shall not discharge the Customer from any existing obligation accrued due on or prior to the date of termination.
24.3 The rights and remedies granted to Cod Steaks pursuant to the Agreement are in addition to, and shall not limit or affect, any other rights or remedies available at law or in equity.
25. COMMUNICATIONS
25.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first-class post or sent by fax:
25.1.1 (in case of communications to Cod Steaks) to its registered office or such changed address as shall be notified to the Customer by Cod Steaks from time to time; or
25.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to Cod Steaks by the Customer from time to time.
25.2 Communications shall be deemed to have been received:
25.2.1 if sent by pre-paid first-class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
25.2.2 if delivered by hand, on the day of delivery; or
25.2.3 if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.