The following definitions and rules of interpretation apply in these terms and conditions.
Ancillary Goods: means any and all of the goods listed on the website or available from time to time from the Owner which are additional to the Equipment and/or its application or use and which costs are not included in the Initial Costs or Monthly Costs and will be payable by the Customer upon being ordered.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Cartridges: means the delivery system for the specialist resin compounds for use only on the Equipment.
Commencement Date: the date that the Customer pays to licences the Equipment and enters into the Contract.
Customer: means the person and/or company making payment to licence the Equipment as the Customer.
Customer’s Credit Card: the credit card nominated by the Customer from which the Customer authorises the Owner, or Owner’s authorised representative, to deduct all Payments and Extra Costs during the Licence Period.
Delivery: the transfer of physical possession of the Equipment to the Customer at the Location.
Delivery Date: means the actual date of Delivery of the Equipment and Cartridges ordered on the Order Date.
Equipment: the items of equipment for licence which were invented and patented (in whole or in part) by the Owner and which are used together with the Cartridges and their contents to provide the Supercrease System, together with all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it. The Supercrease System is marketed under the registered trademarks numbered: EU002926616; and UK00002320413, which relate to the provision of permanent creases in items of clothing, textiles or other articles by application of resin(s) or resin compounds from a cartridge utilising the Owner’s proprietary system. Equipment includes all patented or un-patented inventions, processes, methods, ideas, trade secrets, technical information, ideas, materials and data relating to the Supercrease System now owned or subsequently acquired by the Owner and will include any and all technical data, methods, equipment, apparatus and information including, but not limited to, information in the Supercrease System, together with any and all improvements thereon, and information which is necessary for the provision of the permanent creases in items of clothing, textiles or other articles including all copyrights, trademarks and any other intellectual property rights and other related rights which relate to plans, brochures and instructions, or other means of expression having to do with the Supercrease System including photographs, diagrams, promotional materials, table top counters and other visual presentations provided by or agreed by the Owner which are useful in connection with the commercialisation thereof, which Owner has, or hereafter acquires. Patent numbers relevant to the Supercrease System are: 1805761.2; and 1805759.6.
Extra Costs: means the cost of any Ancillary Goods ordered from the Owner by the Customer at the Order Date and/or from time to time during the License Period.
Initial Costs: means the up-front costs of the Order placed on the Order Date plus the costs of Delivery and an Ancillary Good on the website.
Location: means the place at which Delivery will take place which must be specified on the Order Date or confirmed in writing prior to the Delivery Date.
Monthly Costs: means the costs of the Ongoing Monthly Subscription which the Customer agrees can be debited from the Customer Credit Card by, or on behalf of, the Owner on a monthly basis for the Licence Period.
Minimum Licence Period: means one month from the Delivery Date.
Ongoing Monthly Subscription: means the number of Cartridges which the Customer agrees to purchase and receive on a monthly basis which is selected by the Customer at the Order Date.
Order: means the initial amount of Equipment licenced, Cartridges and Ancillary Goods ordered from the Owner on the Order Date together with the Customer’s choice of Ongoing Monthly Subscription and as particularised on the website
Order Date: means the date on which the Customer places the Order.
Owner: means Supercrease Limited of The Moorings, Waterside Business Park, Waterside Road, Stourton, Leeds LS10 1DG.
Payments: the payments, of types listed on the website, which the Customer agrees and authorises to be debited from the Customer Credit Card by, or on behalf of, the Owner including but not limited to the Initial Costs, Monthly Costs, and Extra Costs relating to the licence of the Equipment, the purchase of all Cartridges and the purchase, from time to time, of any Ancillary Goods.
Licence Period: the period of licence being a minimum of one month from the Delivery Date, but continuing thereafter unless and until terminated in accordance with these terms and conditions, which may be varied from time to time in according to clause 17.
Specification: means information set out when confirming order on the website, amongst other information, the Customer’s details and the initial order of Equipment licenced, initial order of Cartridges, Ongoing Monthly Subscription selected by the Customer and Ancillary Goods ordered by the Customer.
Supercrease System: a unique resin application system using the Cartridges in the Equipment to deliver the resin to the cloth which makes long lasting near permanent creases in that cloth and is most often used to provide such creases to articles of clothing.
Total Loss: the Equipment is, in the Owner’s reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
The Owner is the inventor and patent holder of the Supercrease System.
The Customer wishes to use the Supercrease System in its day to day business and, in order to do so, wants to licence the Equipment and enter into a monthly subscription for the purchase of Cartridges and may wish to order Ancillary Goods from time to time AND the Owner is willing to so oblige the Customer subject to these terms and conditions.
The Owner agrees that, other than in the exercise of its rights under these terms and conditions or applicable law, it shall not interfere with the Customer’s quiet possession of the licenced Equipment for the duration of this Contract.
The Licence Period starts on the Delivery Date enduring for the Minimum Licence Period, and shall continue thereafter, unless or until this Contract is terminated in accordance with these terms and conditions.
The Customer authorises the Payments to be taken from the Customer’s Credit Card in favour of the Owner in accordance with the times scheduled. The Payments shall be in Pounds Sterling (or equivalent other currency at the Lessee’s place of residence at the exchange rate applicable on the date Payments are taken) and shall be actioned by the Owner, or Owners representative on its behalf, deducting the Payments from the Customer’s Credit Card (details of which, together with securing/arranging/granting any relevant permissions/authority, must be provided to the Owner on the Order Date and must be kept valid and up to date, or alternative credit card details provided, throughout the Licence Period).
The Payments are inclusive of shipping and VAT and any other applicable taxes and duties or similar charges. Apart from the first month payment which excludes shipping.
All amounts due under these terms and conditions shall be authorised and taken in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Owner can and will supply receipted invoices upon request.
If the Owner is unable to take payment from the Customer’s Credit Card and the Customer fails to remedy the situation by provision of details of an alternative valid credit card within 24 hours of being notified, then, without limiting the Owner’s remedies under clause 11 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement.
Delivery of the Equipment shall be made by the Owner. The Owner shall use all reasonable endeavours to effect Delivery by the date and time agreed between the parties. Title and risk shall transfer in accordance with clause 6 (Title, risk and insurance) of these terms and conditions.
The Customer shall procure that a duly authorised representative of the Customer shall be present at the Delivery of the Equipment. Acceptance of Delivery by such representative shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection). If required by the Owner, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance.
To facilitate Delivery, the Customer shall at its sole expense, provide all requisite access to enable Delivery to be carried out.
Title, risk and insurance:
The Equipment shall at all times remain the property of the Owner, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this Contract).
The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during the Licence Period and until such time as the Equipment is redelivered to the Owner. During the Licence Period, the Customer shall, at its own expense, obtain and maintain the following insurances:
insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as the Owner may from time to time nominate in writing;
insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Owner may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and
insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Owner may from time to time consider reasonably necessary and advise to the Customer.
The Customer shall give immediate written notice to the Owner in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment.
If the Customer fails to effect or maintain any of the insurances required under these terms and conditions, the Owner shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer.
The Customer represents and warrants that it shall during the Licence Period and until such time as the Equipment is redelivered to the Owner:
ensure that the Equipment is kept and operated in a suitable environment with temperatures between 5 and 20 degrees centigrade, used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by the Owner;
use the Equipment ONLY with Cartridges and Ancillary Goods purchased directly from the Owner;
take such steps (including compliance with all safety and usage instructions provided by the Owner) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
maintain at its own expense the Equipment in good and substantial order to keep it in as good an operating condition as it was on the Delivery Date (fair wear and tear only excepted);
make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of the Owner unless carried out to comply with any mandatory modifications required by law or any regulatory authority or unless the component(s) is removed in the ordinary course maintenance and is/are replaced immediately or as soon as practicable by the same component or by one of a similar model or an improved/advanced version of it sourced from the Owner. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Owner immediately upon installation;
keep the Owner fully informed of all material matters relating to the Equipment;
permit the Owner or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
not, without the prior written consent of the Owner, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
not do or permit to be done, without prior written consent of the Owner, any act or thing which will or may jeopardise the right, title and/or interest of the Owner in the Equipment and, where the Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that the Owner may enter such land or building and recover the Equipment both during the term of these terms and conditions and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Owner of any rights such person may have or acquire in the Equipment and a right for the Owner to enter onto such land or building to remove the Equipment;
not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify the Owner and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Owner on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
not use the Equipment for any unlawful purpose;
ensure that at all times the Equipment remains identifiable as being the Owner’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment;
deliver up the Equipment at the end of the Licence Period or on earlier termination of these terms and conditions at such address as the Owner requires, or if necessary, allow the Owner or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
not do or permit to be done anything which could invalidate the insurances referred to in clause 6 (Title, risk and insurance).
The Customer acknowledges that the Owner shall not be responsible for any loss of or damage to the Equipment, or any person or article, arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer undertakes to indemnify the Owner on demand against the same, and against all losses, liabilities, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with any failure by the Customer to comply with the terms of these terms and conditions.
The Owner warrants that the Equipment shall substantially conform to its specification (as made available by the Owner), be of satisfactory quality and fit for any purpose held out by the Owner. The Owner shall take all reasonable steps to remedy, free of charge, any material defect in the Equipment which manifests itself during the Licence Period, provided that:
the Customer notifies the Owner of any defect in writing within ten (10) Business Days of the defect occurring;
the Owner is permitted to make a full examination of the alleged defect;
the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Owner’s authorised personnel;
the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and/or
the defect is directly attributable to defective material, workmanship or design.
If the Owner fails to remedy any material defect in the Equipment in accordance with clause 1, the Owner shall, at the Customer’s request, accept the return of part or all of the Equipment and make an appropriate reduction to the Payments payable during the remaining term of this Contract.
Nothing in these terms and conditions shall exclude or in any way limit:
either party’s liability for death or personal injury caused by its own negligence; or
either party’s liability for fraud or fraudulent misrepresentation.
These terms and conditions set forth the full extent of the Owner’s obligations and liabilities in respect of the Equipment and its hiring to the Customer. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on the Owner except as specifically stated in these terms and conditions. Any condition, warranty or other term concerning the Equipment which might otherwise be implied into or incorporated within these terms and conditions, whether by statute, common law or otherwise, is expressly excluded.
After the expiry of the Minimum Licence Period either party may terminate this Contract by giving to the other one months’ written notice.
Without affecting any other right or remedy available to it, the Owner may terminate these terms and conditions at any time during this Contract with immediate effect by giving notice to the Customer if:
the Customer fails to pay/authorise any amount due under these terms and conditions on the due date for payment and remains in default not less than 2 days after being notified to make such payment;
the Customer commits a material breach of any other term of these terms and conditions 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;
the Customer repeatedly breaches any of the terms of these terms and conditions 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 these terms and conditions;
the Customer 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 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
the Customer 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 its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
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 the Customer (being a company, limited liability partnership or partnership) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Customer (being a company);
the holder of a qualifying floating charge over the assets of the Customer (being a company) has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over all or any of the assets of the Customer or a receiver is appointed over all or any of the assets of the Customer;
the Customer (being an individual) is the subject of a bankruptcy petition, application or order;
a creditor or encumbrancer of the Customer 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 Customer’s assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.2(d) to clause 11.2(k) (inclusive);
the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their affairs or becomes a patient under any mental health legislation.
For the purposes of clause 11.2(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the Owner would otherwise derive from:
a substantial portion of these terms and conditions; or
any of the obligations set out in clause 7, over the duration of these terms and conditions. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
These terms and conditions shall automatically terminate if a Total Loss occurs in relation to the Equipment.
Consequences of termination:
Upon termination/expiry of these terms and conditions, however caused:
the Owner’s consent to the Customer’s possession of the Equipment shall terminate and the Customer, at its own expense, must return the Equipment to the Owner. If the Equipment is not so returned within 14 days of termination/expiry, or is returned damaged or otherwise in breach of these terms and conditions, (or arrangements made by the Customer, communicated to and accepted by the Owner) the Owner will either:
by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Equipment and for this purpose may enter the location or any premises at which the Equipment is located; or
charge the Customer the sum of £1000 and the Customer hereby authorises the Owner to take payment from the Customer’s Credit Card without further notice and, should such payment fail for whatever reason, undertakes to pay the Owner £1000 on demand, and
without prejudice to any other rights or remedies of the Customer, the Owner is authorised to take payment from the Customer’s Credit Card or, should that fail, the Customer shall pay to the Owner on demand:
all Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.4; and
any costs and expenses incurred by the Owner in recovering the Equipment and/or in collecting any sums due under these terms and conditions (including any storage, insurance, repair, transport, legal and re-marketing costs).
Upon termination of these terms and conditions pursuant to clause 1, any other repudiation of these terms and conditions by the Customer which is accepted by the Owner or pursuant to clause 11.4, without prejudice to any other rights or remedies of the Owner, the Owner is authorised to take payment from the Customer’s Credit Card or, should that fail, the Customer will pay to the Owner on demand a sum equal to the whole of the Payments that would (but for the termination) have been payable if this Contract had continued from the date of such demand to the end of the Licence Period.
The sums payable pursuant to clause 2 shall be agreed compensation for the Owner’s loss and shall be payable in addition to the sums payable pursuant to clause 11.1(b).
Termination or expiry of these terms and conditions 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 this Contract which existed at or before the date of termination or expiry.
Neither party shall be in breach of these terms and conditions nor liable for delay in performing, or failure to perform, any of its obligations under these terms and conditions if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 2 months, the party not affected may terminate these terms and conditions by giving 7 days’ written notice to the affected party.
Each party undertakes that it shall not 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 13.2.
Each party may disclose the other party’s confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under these terms and conditions. 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 13; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party shall use any other party’s confidential information for any purpose other than to perform its obligations under these terms and conditions.
Assignment and other dealings:
These terms and conditions are personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate declare a trust over or deal in any other manner with any of its rights and obligations under these terms and conditions.
The Specification and these terms and conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous contracts, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into these terms and conditions it does not rely on[, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these terms and conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement based on any statement in these terms and conditions.
No variation of these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No partnership or agency:
Nothing in these terms and conditions 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.
Each party confirms it is acting on its own behalf and not for the benefit of any other person.
At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these terms and conditions.
Third party rights:
Unless it expressly states otherwise, these terms and conditions does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms and conditions.
The rights of the parties to rescind or vary these terms and conditions are not subject to the consent of any other person.
Any notice or other communication given to a party under or in connection with these terms and conditions shall be in writing and shall be:
delivered by hand or by prepaid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
sent by email to the address specified in the Specification.
Any notice or communication shall be deemed to have been received:
if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
if sent by prepaid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 21.2c, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
No failure or delay by a party to exercise any right or remedy provided under these terms and conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies:
Except as expressly provided in these terms and conditions, the rights and remedies provided under these terms and conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
If any provision or part-provision of these terms and conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these terms and conditions.
If any provision or part-provision of these terms and conditions is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
These terms and conditions 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 shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these terms and conditions or its subject matter or formation.