Bertha & Co
This agreement applies between you (Seller) and Bertha & Co. Ltd, registered in England and Wales with company number 10557626 of Bertha House, Thorns Cottages, Woodbury, Devon, England, EX5 1LR, trading as Bertha & Co (Bertha & Co) in connection with the provision of the Service to you by us.
By using the Service and the Website you agree to be bound by the Terms as amended from time to time.
Your attention is particularly drawn to the indemnity at clause 14 of this agreement.
The following definitions and rules of interpretation apply in this agreement.
Affiliate: any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force obligations as a trader selling to consumers arising from the following legislation which includes but is not limited to the following, as amended from time to time:
(a) The Consumer Rights Act 2015;
(b) The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013;
(c) The Consumer Protection from Unfair Trading Regulations 2008;
(d) UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code);
(e) The Sale of Goods Act 1979; and
(f) Supply of Goods and Services Act 1982.
Bertha and Co’s Equipment: equipment, including tools, systems, cabling or facilities, provided by Bertha & Co to the Customer and used directly or indirectly in the supply of the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Cancellation and Refund Procedure: the procedure for Customers to request a refund, return or cancellation of the Product via the Website.
Charges: the sums payable for the Services, as specified in clause 13.
Commission Fee: has the meaning set out in clause 15.3 of this agreement.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Contract: the contract for the sale of Products or services by the Seller to the Customer.
Customer Terms: the contractual terms between the Seller and Customer displayed on the Seller’s Storefront.
Data Controller: has the meaning set out in section 1(1) of the Data Protection Act 1998.
Data Subject: an individual who is the subject of Personal Data.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Joining Fee: the fee payable by the Seller prior to commencement of this Agreement which shall be notified to the Seller by Bertha & Co on acceptance of a request to become a Seller.
Mandatory Policies: Bertha & Co’s policies displayed on the Website or notified to the Seller as amended from time to time.
Material Change: a variation in the terms of this Agreement by Bertha & Co entitling the Seller to terminate this agreement on 30 days’ notice.
Non-cancellable Product: Products of a type which the Customer’s right to cancel is excluded in accordance with s28 the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and any other applicable laws as amended from time to time.
Personal Data: has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which Bertha & Co is providing services under this agreement.
Portal: the password protected area of the Website accessible by the Seller only for the purpose of participating in the Service.
Processing and process: have the meaning set out in section 1(1) of the Data Protection Act 1998.
Products: the goods or services that Sellers sell via the Website.
Refund Fee: a percentage of the total amount refunded to a Customer pursuant to a Customer Contract.
Return: the request by a Customer to the Seller for the cancellation, exchange, return and/ or refund pursuant to a Customer Contract.
Services: the services provided by Bertha & Co to the Seller for the sale of Products to Customers via the Website or such other channel offered.
Storefront: the part of the Website visible to Customers displaying the Seller’s information and Products.
VAT: value added tax chargeable under the Value Added Tax Act 1994.
Website: means www.berthaandco.com or the website nominated by Bertha & Co from time to time at its sole discretion.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written includes email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to this agreement or to any other agreement or document referred to in this agreement is a reference of this agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this agreement) from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.1 This agreement shall commence after the following:
(a) Bertha & Co notifies the Seller of acceptance of a request to be a Seller; and
(b) the Seller has paid the Joining Fee.
2.2 This agreement shall continue in force unless otherwise terminated in accordance with this agreement until either party notifies the other in writing, such notice to expire not less than 30 days after the date it is deemed delivered.
3.1 Bertha & Co shall use reasonable endeavours to provide the Services in accordance with this agreement in all material respects.
3.2 Bertha & Co shall use reasonable endeavours to meet any performance dates but any such dates shall be estimates only and time for performance by Bertha & Co shall not be of the essence of this agreement.
3.3 After Commencement, the Seller shall create a password via the Website so that the Seller may access the Portal;
3.4 Bertha & Co may alter the Service at any time subject to this agreement.
4. Appointment of Bertha & Co as Agent
4.1 The Seller appoints Bertha & Co as its commercial agent:
(a) to conclude the sale of Products to Customers via the Website; and
(b) for the purpose of accepting, refunding and/or otherwise processing payments for the sale of Products pursuant to the Service
and Bertha & Co accepts this appointment.
4.2 The Customer Contract is made only between the Seller and Customer. Bertha & Co is not a party to and has no obligation to Customers to fulfil the Customer Contract.
4.3 Products offered for sale through the Website are neither owned nor come into the possession of Bertha & Co.
4.4 The Seller and Bertha & Co agree that except as otherwise provided in this agreement the implied duties of an agent are expressly excluded from this agreement.
5. Seller’s relationship with the Customer
5.1 When a Customer submits an order via the Website, Bertha & Co shall send an automated response to the Customer that the order is awaiting acceptance by the Seller.
5.2 Bertha & Co shall notify the Seller of any order awaiting acceptance by the Seller by email or via the Website.
5.3 Following receipt of such notification the Seller shall, within a maximum of 2 Business Days, and preferably within 1 Business Day, confirm acceptance or rejection of each order to Bertha & Co in the format requested by Bertha & Co and provide an estimated dispatch date. The Seller shall use its best endeavours to accept each order.
5.4 Bertha & Co will send to the Customer by email a confirmation of acceptance of their order. The Customer Contract is concluded when Bertha & Co sends that order confirmation email to the Customer.
5.5 The terms of the Customer Contract shall comprise of:
(a) the Customer Terms;
(b) the email confirmation relating to the Customer's order; and
(c) information displayed on the relevant Product page.
5.6 Following acceptance of an order, the Seller shall:
(a) fulfil the Customer Contract as soon as reasonably practicable;
(b) confirm to the Customer the time and method of dispatch;
(c) dispatch the Customer order to ensure that it reaches the Customer within the timelines advertised on the relevant Product page and/or in accordance with any subsequent correspondence with the Customer.
(d) notify the Customer promptly at each of the following stages:
(i) receipt of order notification, with an estimated dispatch date;
(ii) dispatch of an order with an expected delivery date;
(iii) any enquiries relating to the order;
(iv) receipt of an item that has been returned to the Seller; and
(v) processing of an exchange or refund.
5.7 The Seller shall include with all orders a Customer receipt for the order and such additional documentation or material as may be required and/or provided by Bertha & Co.
6. Communication with Customers
6.1 All correspondence between the Seller and the Customer shall:
(a) be solely for the purposes of fulfilling a Customer order;
(b) at all times include a reference to the Website;
(c) not include any reference to the Seller's own website, other correspondence address or any other promotion of services outside those offered by Bertha & Co.
6.2 The obligations under clause 6 shall include any material included with the dispatch of a Customer’s order.
6.3 The Seller shall respond to any Customer enquiries or Customer complaints promptly and courteously in the first instance within one Business Day, and shall advise Bertha & Co of any escalated unresolved Customer enquiries as soon as reasonably practicable.
7. Payment to Sellers
7.1 The Customer’s obligation to pay the Seller for Products is satisfied when the Customer validly pays Bertha & Co for the applicable Products.
7.2 Payments for Products are made directly by the Customer to Bertha & Co following the Seller confirming its acceptance of the order to Bertha & Co.
7.3 Bertha & Co shall pay the Seller the amounts due under this agreement once every 7 days , which are as follows:
(a) the balance of the aggregate payments made by Customers to Bertha & Co pursuant to Customer Contracts with the Seller in the preceding month, less:
(i) the Charges;
(ii) any refund payments made to Customers not paid from the Retention in accordance with clause 7.4; and
(iii) any other amounts validly due to Bertha & Co by the Seller pursuant to this agreement.
7.4 Bertha & Co may retain an amount of the aggregate payments due to the Seller to provide for refunds due or expected to be due to Customers, to be repaid to the Seller no later than 8 weeks after it is retained (Retention).
7.5 The Seller shall provide bank details for payment and shall notify Bertha & Co of any changes. The Seller shall be responsible bank charges or other administrative expenses incurred by Bertha & Co as a result of any inaccuracies in any such information.
7.6 Unless otherwise agreed by Bertha & Co and the Seller, any payments made by Bertha & Co to the Seller will be in pounds sterling.
7.7 The Seller will not make a claim against third parties for payment if the Customer has validly paid Bertha & Co.
8. Returns and refunds
8.1 The Seller shall comply with the Returns procedure set out in the Customer Contract as amended from time to time.
8.2 On receipt of a valid Return request by a Customer, the Seller shall initiate a refund request to Bertha & Co via the Website or via email if advised by Bertha & Co.
8.3 Subject to the Returns procedure, Bertha & Co shall approve the return, cancellation or refund request and make the refund payment to the Customer directly.
8.4 The Refund Fee will be charged to the Seller by Bertha & Co for any refund made.
8.5 Bertha & Co will process a refund to a Customer for a Product as the Seller’s agent where:
(a) the Seller instructs Bertha & Co to process a refund to a Customer from the Retention, or upon payment in advance of the refund amount to Bertha & Co by the Seller (including the Refund Fee); or
(b) in Bertha & Co’s opinion, the Seller is in breach of this agreement or the Customer Contract.
8.6 If the Retention is insufficient to cover the full amount of the refund due to the Customer, on notification in writing by Bertha & Co to the Seller, the Seller shall make payment of the balance to Bertha & Co within 5 business days of a request by Bertha & Co.
8.7 The Seller shall not accept requests for, invite or issue refund payments direct to Customers.
8.8 The Commission Fee paid in respect of the refunded Products will be returned to the Seller.
9. Sellers’ return, cancellation and refund obligations to Customers
9.1 The Seller is responsible for ensuring that it is familiar with and complies with the Applicable Laws when dealing with Returns.
9.2 In the event of a conflict between the Seller’s obligations in clause 9.3 and the Applicable Laws, the Applicable Laws shall prevail.
9.3 As a minimum the Seller shall:
(a) display on its Storefront an address in the United Kingdom to which a Customer may return a Product.
(b) acknowledge a Return request as soon as possible and within 2 Business Days of receipt;
(c) where appropriate, process the Return request as soon as possible and no later than 14 days after the day the returned Product is received by the Seller;
(d) if earlier, 14 days after the date the Customer provides evidence that they have returned the Product to the Seller; and
(e) follow the relevant provisions of the Customer Contract.
(f) reject the request for cancellation of a Customer Contract if the Product was supplied to the Customer otherwise in accordance with the Applicable Laws, but where the Product is:
(i) made to the Customer’s specifications or clearly personalised;
(ii) liable to deteriorate or expire rapidly;
(iii) the supply of accommodation, transport of goods, vehicle rental services, catering or services related to leisure activities, if the Customer Contract provides for a specific date or period of performance.
(iv) sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;
(v) sealed audio or sealed video recordings or sealed computer software, if the goods become unsealed after delivery; or
(vi) goods which become mixed inseparably (according to their nature) with other items after delivery.
10. Customer Relations
10.1 The Site provides a system of Customer Feedback, which may be obtained and/or facilitated by a third party service provider selected by Bertha & Co (the “Third Party”).
10.2 Bertha & Co and/or the Third Party may, in its discretion, post on the Seller’s relevant Product Page and on the Third Party website Customer Feedback relating to the transaction in question for a period of up to 2 years after Bertha & Co and/or the Third Party receives such Customer Feedback;
10.3 Following the provision of any Customer Feedback, Bertha & Co shall make such Customer Feedback available to the Seller via the Portal. The Seller may submit a response to any negative Customer Feedback via the facility provided by Bertha & Co, and Bertha & Co and any Third Party will display any response with reasonable prominence and proximity to the corresponding Customer Feedback.
10.4 The Seller shall not contact any Customer directly in response to Customer Feedback.
10.5 The Seller will ensure that any response is true and accurate and not misleading in any way, and does not contain any material that may be construed as offensive, defamatory or unlawful.
10.6 Bertha & Co may, in its sole discretion and in accordance with the applicable terms and conditions of any Third Party elect to amend, or not to post, any response that Bertha & Co and/or the Third Party consider, in their sole discretion, to be offensive, defamatory, unlawful or otherwise inappropriate.
11.1 The Seller shall:
(a) ensure that at all times all computer hardware and software it uses to access and interoperate with the Website is equipped and functions with up-to-date software (including up-to-date internet browser software) and up-to-date protection against viruses; and
(b) ensure that information supplied electronically to Bertha & Co and to the Website is submitted free from viruses;
11.2 Bertha & Co has no responsibility for the provision, support and maintenance of any of the Seller's hardware or software used to provide the Seller with access to the internet or the Website, or any related hardware or software (including any IP router, proxy server, firewall or anti-virus software), the responsibility for which shall remain exclusively with the Seller.
11.3 The Seller shall:
(a) co-operate with Bertha & Co in all matters relating to the Services;
(b) appoint a manager for the Services. That person shall have the authority to contractually to bind the Seller on matters relating to the Services;
(c) provide, for Bertha & Co, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Seller's premises, office accommodation, data and other facilities as required;
(d) provide to Bertha & Co in a timely manner all documents, information, items and materials in any form (whether owned by the Seller or third party) reasonably required by Bertha & Co in connection with the Services and ensure that they are accurate and complete;
12.1 The Seller:
(a) is responsible for the security and proper use and access of the Portal;
(b) shall inform Bertha & Co immediately if there is any reason to believe a third party may obtain unauthorised access to the Portal;
(c) shall inform Berth & Co immediately if the Seller forgets or loses a password and must satisfy such security checks as Berth & Co may operate in order to obtain a new password.
12.2 Berth & Co shall in its discretion:
(a) suspend access to the Service if at any time Berth & Co considers that there is or is likely to be a breach of security; and
(b) require the Seller to change passwords used by the Seller in connection with the provision of the Service.
13.1 The Seller shall obtain, maintain and produce on request all necessary licences and consents and comply with the Applicable Laws and Mandatory Policies as required to enable the sale of the Products to Customers in all cases before Commencement which shall include but is not limited to:
(d) certification (including CE); and
13.2 The Seller shall inform Bertha & Co as soon as reasonably practicable upon becoming aware of any claim against Bertha & Co or the Seller arising out of or in connection with any defect in its Products, or any failure by the Seller to ensure that the Products are appropriately marked or certified in accordance with Applicable Laws.
13.3 The Seller shall comply with Bertha & Co's reasonable instructions relating to any product recall and in any event Bertha & Co reserves the right to take immediate and exclusive conduct of the product recall on notice to the Seller, in which case the Seller shall give such assistance as Bertha & Co may reasonably require.
13.4 During the term of this agreement the Seller shall maintain in force with a reputable insurance company, appropriate public liability insurance at an amount not less than that required to cover the liabilities that may arise under or in connection with this agreement and shall produce to Bertha & Co on request both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
14.1 The Seller shall indemnify Bertha & Co against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Bertha & Co arising out of or in connection with:
(a) The Seller's breach or negligent performance or non-performance of this agreement;
(b) any claim made against Bertha & Co by a third party arising out of or in connection with the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Seller, its employees, agents or subcontractors;
(c) any claim made against Bertha & Co by a third party for death, personal injury or damage to property arising out of or in connection with defective Products, to the extent that the defect in the Products is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors; or
(d) any claim made against Bertha & Co for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Products or the Seller’s Intellectual Property Rights.
14.2 This indemnity shall not cover Bertha & Co to the extent that a claim under it results from Bertha & Co's negligence or wilful misconduct.
14.3 Liability under this indemnity is conditional on Bertha & Co discharging the following obligations. If any third party makes a claim, or notifies an intention to make a claim, against Bertha & Co which may reasonably be considered likely to give rise to a liability under this indemnity (a Claim), Bertha & Co shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Seller, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Seller (such consent not to be unreasonably conditioned, withheld or delayed) provided that Bertha & Co may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to the Seller, but without obtaining the Seller's consent if Bertha & Co believes that failure to settle the Claim would be prejudicial to it in any material respect;
(c) give the Seller access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of Bertha & Co, so as to enable the Seller and its professional advisers to examine them and to take copies (at the Seller's expense) for the purpose of assessing the Claim; and
14.4 If a payment due from the Seller under this clause is subject to tax (whether by way of direct assessment or withholding at its source), Bertha & Co shall be entitled to receive from the Seller such amounts as shall ensure that the net receipt, after tax, to Bertha & Co in respect of the payment is the same as it would have been were the payment not subject to tax.
14.5 Nothing in this clause shall restrict or limit Bertha & Co's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
15. Charges and payment
15.1 The Charges include without limitation the following and any other amounts agreed between the parties or set out in this agreement:
(a) the Joining Fee;
(b) the Commission Fee; and
(c) the Refund Fee.
15.2 The Charges shall be notified to the Seller in writing prior to acceptance of the Seller’s request to participate in the Service.
15.3 The Commission Fee is calculated as a percentage of the total amount payable by the Customer pursuant to a Customer Contract which shall include without limitation delivery charges and tax paid by the Customer.
15.4 In consideration of the provision of the Services by Bertha & Co, the Seller shall pay the Charges.
15.5 Bertha & Co may alter the Charges on 90 days written notice.
15.6 Without prejudice to any other right or remedy that it may have, if the Seller fails to pay Bertha & Co any sum due under this agreement on the due date:
(a) the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank PLC's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Seller shall pay the interest together with the overdue amount; and
(b) Bertha & Co may suspend all or part of the Services until payment has been made in full.
15.7 All sums payable to Bertha & Co under this agreement:
(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
16.1 Bertha & Co’s Intellectual Property Rights may only be used in accordance with these Terms or with the prior written consent of Bertha & Co.
16.2 Intellectual Property Rights created by Bertha & Co in the course of the performance of these Terms or otherwise in the provision of the Service shall remain the property of Bertha & Co.
16.3 Bertha & Co grants to the Seller a non-exclusive, non-transferable revocable and limited licence for the duration of the Terms only to use any Software or Documentation for the sole purpose of accessing and using the Service. Subject thereto, nothing in the Conditions shall be deemed to have given the Seller a licence or any other right to use any of Bertha & Co’s Intellectual Property Rights.
16.4 the Seller:
(a) and its licensors shall retain ownership of all Intellectual Property Rights in the Products;
(b) grants Bertha & Co a fully paid-up, non-exclusive, royalty-free, transferable in any Intellectual Property Rights arising from any content that appears on the Seller's Storefront or in any other promotional material in Bertha & Co's own editorial content or promotional activity relating to the Seller, its business and Products for the purpose of the Services or its business; and
(c) hereby waives their rights to be acknowledged as the author of their Seller Information and to object to the use, in whatever form, of the Seller Materials by Bertha & Co.
16.5 The Seller:
(a) warrants that:
(i) the Products;
(ii) the display or offering of the Products for sale via the Website;
(iii) the display of the Products in marketing materials; or
(iv) Bertha & Co’s lawful exercise of the rights granted under the licence at clause 16.4(b),
shall not infringe the rights, including any Intellectual Property Rights, of any third party
17.1 The Seller warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
(a) take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
(i) the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
(ii) the nature of the data to be protected.
(b) take reasonable steps to ensure compliance with those measures.
17.2 Bertha & Co will not be liable for any claim brought by a Data Subject arising from any action or omission by the Seller, to the extent that such action or omission resulted directly from the Seller's instructions.
17.3 Bertha & Co may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractors' contract:
(a) is on terms which are substantially the same as those set out in this agreement; and
(b) terminates automatically on termination of this agreement for any reason.
18.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 18.2.
18.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 18; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
18.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
19.1 Nothing in this agreement shall limit or exclude Bertha & Co's liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
19.2 Subject to clause 19.1, Bertha & Co shall not be liable to the Seller, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information; and
(g) any indirect or consequential loss.
19.3 Subject to clause 19.1, the Bertha & Co’s total liability to the Seller, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this agreement shall be limited to the average annual Charges (calculated by reference to the charges in successive 12 month periods from the date of this agreement) paid by the Seller under this agreement.
19.4 The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
20.1 Without affecting any other right or remedy available to it, Bertha & Co may suspend the provision of the Service or terminate this agreement with immediate effect by giving written notice to the Seller if:
(a) the Seller fails to pay any amount due under this agreement on the due date for payment;
(b) in Bertha & Co’s opinion, the Seller's eligibility or suitability to receive the Service changes.
(c) the Seller commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified to do so;
(d) the Seller repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(e) the Seller suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(f) the Seller commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
(g) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
(h) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(i) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(j) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(k) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 7 days;
(l) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 20.1(e) to clause 20.1(k) (inclusive); or
(m) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
20.2 Without affecting any other right or remedy available to it, Bertha & Co may terminate this agreement with immediate effect by giving written notice to the Seller if:
(a) the Seller fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified to make such payment; or
(b) there is a change of control of the Seller.
21.1 On termination or expiry of this agreement the Seller shall immediately pay to Bertha & Co all of Bertha & Co's outstanding unpaid Charges and interest.
21.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
22.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts;
(h) non-performance by suppliers or subcontractors; and
(i) interruption or failure of utility service.
22.2 Provided it has complied with clause 22.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
22.3 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
22.4 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 30 days, the party not affected by the Force Majeure Event may terminate this agreement by giving 14 days written notice to the Affected Party.
22.5 If the Force Majeure Event prevails for a continuous period of more than 6 months, either party may terminate this agreement by giving 14 days' written notice to the other party. On the expiry of this notice period, this agreement will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this agreement occurring prior to such termination.
23.1 This agreement is personal to the Seller and the Seller shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
23.2 Bertha & Co may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under this agreement.
24.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
24.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
24.3 A party that waives a right or remedy provided under this agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
26.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
26.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
27.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
27.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
If there is an inconsistency between any of the provisions of this agreement and the provisions of the Schedules, the provisions of this agreement shall prevail.
29.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
29.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
No one other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
31.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address firstname.lastname@example.org.
31.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting.
(c) if sent by email, at 9.00 am on the next Business Day after transmission.
31.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.