Terms & Conditions
UPSET SOLUTIONS LTD – TERMS AND CONDITIONS FOR THE SUPPLY OR HIRE OF GOODS AND THE SUPPLY OF SERVICES
Last updated: March 2026
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
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 UK time to 5.00 pm UK time on any Business Day.
Commencement Date: has the meaning given in clause 2.2.
Competent Authority: any supranational, statutory national, local or municipal government body, agency, court, department, official or public or statutory person, police, or other authority in any jurisdiction having authority over the Parties (or any one of them) or having responsibility for the regulation or governance of any aspect of the performance of the Contract.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.11.
Confidential Information: all information which is imparted or obtained under or in connection with this Contract on, before or after the Commencement Date in confidence (whether in writing, visual, oral, electronic or by other means and whether directly or indirectly) or is of a confidential nature, relating to the business or prospective business, current or projected plans or internal affairs of any of the Parties, including in particular, but not limited to, the terms of this Contract, all know-how, trade secrets, products, operations, processes, product information, designs, concepts, information regarding the Stadium and unpublished information relating to any of the Parties’ Intellectual Property Rights, and any other commercial, financial or technical information relating to the business or prospective business of any of the Parties.
Contract: the contract between Upset and the Client for the supply of Goods or Services or Goods and Services or hire of Goods or hire of Goods and supply of Services in accordance with these Conditions and the Quote.
control: when used in the expression change of control, has the meaning given in section 1124 of the Corporation Tax Act 2010.
Client: the company, firm, organisation, or individual who: (i) purchases the Goods or Services or Goods and Services; (ii) hires the Goods; (iii) or hires the Goods and purchases Services, from Upset.
Deliverables: the deliverables set out in the Quote produced by Upset for the Client.
Delivery Date: has meaning given in clause 3.1(e)
Delivery Location: has the meaning given in clause 3.1(d).
Force Majeure Event: any circumstance not within Upset’s reasonable control including: (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 action taken by a government or public authority, including 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 (other than by the staff of the party seeking to rely on this circumstance or those of its subcontractors); (h) non-performance by suppliers or subcontractors; and (i) interruption or failure of utility service.
Goods: the goods (or any part of them) set out in the Quote and further particularised by any Goods Specification.
Goods Specification: any specification for the Goods, including any relevant plans or drawings as agreed by the Parties.
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.
Order: the Client’s order (whether in writing or otherwise) for the supply of goods or services or goods and services or hire of goods or hire of goods and supply of services from Upset.
Rental Payment: in the event that the Client hires the Goods, the payments made by the Client as set out in the Quote.
Rental Period: the period of hire of the Goods as set out in the Quote.
Risk Period: has the meaning given in clause 4.2(b).
Services: the services, including the Deliverables, supplied by Upset to the Client as set out in the Quote.
Service Specification: the description or specification for the Services as agreed by the Parties.
Upset: Upset Solutions Ltd registered in England and Wales with company number 14468933.
Upset Materials: has the meaning given in clause 6.1(a)(xvi).
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a Party includes its personal or legal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written excludes fax but not email.
(f) Each of Upset and the Client shall be a Party and together Upset and the Client shall be the Parties.
2. BASIS OF CONTRACT
2.1 The Client shall make an Order to Upset for the purchase goods or services or goods and services or hire goods or hire goods and purchase services from Upset in accordance with these Conditions.
2.2 Subject to clause 2.4, following the actual receipt of any Order by Upset shall prepare a Quote and send a Quote to the Client. A Quote shall constitute an offer by Upset to supply the Goods or Services or Goods and Services or hire Goods or hire Goods and supply Services to the Client.
2.3 The Quote shall be deemed to be accepted by the Client upon the earliest of: (i) expressly accepts the Quote (in writing or otherwise); (ii) impliedly accepts the Quote and Upset begins to supply the Goods and/or Services as set out in the Quote; (iii) receives the delivery of the Goods at the Delivery Location; or (iv) receives the delivery of the Services. When a Quote is accepted by the Client, the Contract shall come into existence on the date upon which Upset sent the Quote to the Client (Commencement Date).
2.4 Upset may accept or reject an Order at its sole and absolute discretion. A Contract shall not come into force between Upset and the Client unless and until the Quote is accepted by the Client.
2.5 Any samples, drawings, descriptive matter, marketing, or advertising issued by Upset and any descriptions of the goods that Upset is capable of supplying or illustrations or descriptions of the services that Upset is capable of supplying contained in Upset’s portfolio, website, channels, or materials are issued or published for the sole purpose of giving an approximate idea of the goods and/or services that Upset is capable of supplying. They shall not form part of the Contract nor have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. For the avoidance of doubt, upon the Commencement Date, the Client acknowledges and agrees that these Conditions: (i) supersede any previously issued terms and conditions and no terms or conditions endorsed on, delivered with, or contained in the Client’s purchase conditions, Order, confirmation of the Quote, acceptance of Quote, specification or other document shall form part of the Contract; (ii) are the only Conditions upon which the Parties are prepared to deal with one another.
2.7 All of these Conditions shall apply to the supply of both Goods and Services and the hire of Goods except where application to one or the other is specified.
2.8 The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Client that is inconsistent with these Conditions.
3. GOODS – DELIVERY OF GOODS, QUALITY OF GOODS, AND HIRE OF GOODS
3.1 In the event that the Quote sets out that the Client shall purchase or hire Goods from Upset the following clauses shall apply:
(a) the Goods are as described in the Goods Specification unless amended by Upset from time to time;
(b) Upset reserves the right to amend the Goods Specification at any time for its convenience, and Upset shall notify the Client in any such event. In the event of any such amendment by Upset, the Client shall continue to provide the indemnity as described in clause 6.1(e)(vii);
(c) Upset shall use reasonable endeavours to ensure that: (i) each delivery of the Goods is made as specified in the Quote; and (ii) if Upset requires the Client to return any packaging materials to Upset, that fact is clearly stated on the delivery note (the Client shall make any such packaging materials available for collection at such times as Upset shall reasonably request, and returns of packaging materials shall be at the Client’s cost and expense);
(d) Upset shall deliver the Goods to the location set out in the Quote or such other location as the Parties may agree (Delivery Location) at any time after Upset notifies the Client that the Goods are ready;
(e) delivery of the Goods shall be completed on arrivals of the Goods at the Delivery Location (Delivery Date);
(f) any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Upset shall not be liable for any delay in delivery of the Goods that is caused by or arising from: (i) a Client Default; (ii) a Force Majeure Event; (iii) the Client’s failure to provide Upset the recommended amount of lead time as recommended by Upset from time to time; (iv) the transit of the Goods via road, rail or sea; (v) clearing customs, border crossings, border controls, ports of entry or exit, or other similar areas or locations where goods are inspected, processed, or taxed by government officials; and/or (vi) the Client’s failure to provide Upset with adequate delivery instructions or any other instructions that are relevant to the supply or hire of the Goods;
(g) if Upset fails to deliver the Goods, its liability shall be limited to the reasonable costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Upset shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Client’s failure to provide Upset with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods;
(h) if the Client fails to accept delivery of the Goods upon Upset’s notification to the Client that the Goods are ready for delivery, then except where such failure or delay is caused by a Force Majeure Event or by Upset’s failure to comply with its obligations under the Contract in respect of the Goods: (i) delivery of the Goods shall be deemed to have been completed at 9.00 am UK time on the Business Day following the day on which Upset notified the Client that the Goods were ready; and (ii) Upset shall store the Goods until actual delivery takes place, and charge the Client for all related costs and expenses (including, but not limited to, insurance);
(i) if after the day on which Upset notified the Client that the Goods were ready for delivery the Client has not accepted actual delivery of them, Upset may resell or otherwise dispose of part or all of the Goods and, after deducting any storage and selling costs and expenses, charge the Client for any shortfall below the price of the Goods;
(j) if specified in the Quote, Upset may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment;
(k) Upset shall use reasonable endeavours to ensure that on delivery the Goods shall conform in all material respects with the Goods Specification;
(l) subject to clause 3.1(m), if: (i) the Client gives notice in writing to Upset within a reasonable time of discovery that some or all of the Goods do not comply with clause 3.1(k); (ii) Upset is given a reasonable opportunity of examining such Goods; and (iii) the Client (if asked to do so by Upset) returns such Goods to Upset’s place of business at the Client’s cost, Upset shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full;
(m) Upset shall not be liable for the Goods’ failure to comply with clause 3.1(k) if: (i) the Client makes any further use of such Goods after giving a notice in accordance with clause 3.1(l); (ii) the defect arises because the Client failed to follow Upset’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same; (iii) the defect arises as a result of Upset following any drawing, design or specification supplied by the Client; (iv) the Client alters or repairs such Goods without the written consent of Upset; (v) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or (vi) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
(n) the Parties acknowledge and agree that clauses 3.1(a) to 3.1(m) (inclusive) shall apply to any repaired or replacement Goods supplied by Upset.
3.2 In the event that the Quote sets out that the Client shall hire the Goods from Upset the following clause shall apply in addition to clause 3.1 the hire of the Goods shall start on the Delivery Date and continue, unless this Contract is terminated earlier in accordance with clauses 10.1, in accordance with the Rental Period, when the hire of the Goods shall terminate automatically without notice.
4. TITLE AND RISK
4.1 In the event that the Quote sets out that the Client shall purchase the Goods the following clauses shall apply:
(a) the risk (including risk of loss, theft, damage, or destruction) in the Goods shall pass to the Client on the Commencement Date;
(b) the title to the Goods shall not pass to the Client until Upset receives payment in full (in cash or cleared funds) for the Goods and any other goods that Upset has supplied to the Client in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums;
(c) until title to the Goods has passed to the Client, the Client shall where applicable: (i) store the Goods separately from all other goods held by the Client so that they remain readily identifiable as Upset’s property; (ii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (iii) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Upset’s behalf from the date of delivery; (iv) notify Upset immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d); and (v) give Upset such information as Upset may reasonably require from time to time relating to: (1) the Goods; and (2) the ongoing financial position of the Client; and
(d) at any time before title to the Goods passes to the Client, Upset may require the Client to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Client fails to do so promptly, enter (and the Client shall procure entry of) any premises of the Client or of any third party where the Goods are stored in order to recover them.
4.2 In the event that the Quote sets out that the Client shall hire the Goods the following clauses shall apply:
(a) the Goods shall at all times remain the property of Upset, and the Client shall have no right, title or interest in or to the Goods (save the right to possession and use of the Goods subject to the terms and conditions of this Contract);
(b) the risk of loss, theft, damage or destruction of the Goods shall pass to the Client on the Commencement Date. The Goods shall remain at the sole risk of the Client during the Rental Period and any further term during which the Goods are in the possession, custody or control of the Client (Risk Period) until such time as Upset retakes possession of the Goods;
(c) during the Rental Period and the Risk Period, the Client shall, at its own expense, obtain and maintain the following insurances: (i) insurance of the Goods 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 Upset may from time to time nominate in writing; (ii) insurance for such amounts as a prudent owner or operator of the Goods would insure for, or such amount as Upset 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 Goods; and (iii) insurance against such other or further risks relating to the Goods as may be required by law, together with such other insurance as Upset may from time to time consider reasonably necessary and advise to the Client in writing;
(d) the Client shall be responsible for paying any deductibles due on any claims under such insurance policies;
(e) if the Client fails to effect or maintain any of the insurances required under this Contract, Upset 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 Client;
(f) the Client shall supply on demand copies of the relevant insurance policies or other insurance confirmation acceptable to Upset and proof of premium payment to Upset to confirm the insurance arrangements; and
(g) the Client shall give immediate written notice to Upset in the event of any loss, accident or damage to the Goods arising out of or in connection with the Client’s possession or use of the Goods.
5. SUPPLY OF SERVICES
5.1 In the event that the Quote sets out that the Client shall receive the supply of the Services from Upset the following clauses shall apply:
(a) Upset shall use reasonable endeavours to supply the Services to the Client: (i) in accordance with the Service Specification in all material respects; and (ii) using reasonable care and skill;
(b) Upset shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quote, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services; and
(c) Upset reserves the right to amend the Service Specification at any time for its convenience and Upset shall notify the Client in any such event.
6. CLIENT’S OBLIGATIONS
6.1 In the event that the Quote sets out that the Client shall purchase or hire Goods from Upset or shall receive the supply of the Services from Upset the following clauses shall apply:
(a) the Client represents, warrants, and undertakes that it shall:
(i) ensure that the Order, the Quote, and any information it provides in either or both of the Service Specification and the Goods Specification are complete and accurate;
(ii) ensure that Upset’s use and supply of the Goods and/or Services and/or hire of the Goods in accordance with the Service Specification, the Goods Specification, and or the instructions, requests, directions of the Client shall not infringe the rights, including (without limitation) any Intellectual Property Rights, of any third party;
(iii) co-operate reasonably and in good faith with Upset in all matters and comply with Upset’s requests, instructions, and directions from time to time;
(iv) the individual who makes the Order and/or accepts the Quote shall have authority to contractually bind the Client;
(v) provide, or promptly procure the provision to, Upset, its employees, agents, consultants and subcontractors, with access to the relevant premises, site, venue, and other facilities as required by Upset to supply the Goods and/or Services;
(vi) provide Upset with such information and materials as Upset may require, and ensure that such information is complete and accurate in all material respects;
(vii) prepare, or promptly procure the preparation of, the relevant premises, site, venue, or other facility for the supply of the Goods and/or Services;
(viii) obtain and maintain all necessary licences, permissions, approvals, authorisations, and consents which may be required for the supply of the Goods and/or Services before the Delivery Date and/or the date on which the Services are to start (including, but not limited to, import licences and export licenses);
(ix) without limiting clauses 6.1(a)(iii) and 6.1(a)(viii), the Client shall at its own cost provide to Upset, or (where local laws or regulations require Upset to do so) assist in good faith Upset in procuring, any licences, permissions, approvals, authorisations, consents and/or documents necessary under applicable laws and regulations for Upset to export the Goods to the Delivery Location and/or to supply the Services in accordance with such laws and regulations;
(x) observe and comply with all applicable laws, including (without limitation) health and safety laws and data protection laws;
(xi) not use the Goods or receive the Services for any unlawful, indecent, or improper purpose;
(xii) inform Upset of all policies and procedures in place at the relevant premises, site, venue, or other facility where the Services are to be supplied and/or the Delivery Location within a reasonable period before the Delivery Date and/or the date on which the Services are to start;
(xiii) not do anything which might invalidate any insurance maintained by Upset or which might increase the relevant insurance premium payable by Upset;
(xiv) not do anything that is reasonably suspected by Upset (in Upset’s sole discretion) to: (1) have an adverse or detrimental impact on the activities, image, or reputation of Upset or Upset’s officers, directors, employees, consultants or subcontractors; or (2) bring Upset (or its officers, directors, employees, consultants or subcontractors) into disrepute;
(xv) attend all meetings requested on reasonable notice by Upset;
(xvi) keep all materials, equipment, documents and other property of Upset (Upset Materials), or procure that Upset Materials are kept, at the relevant premises, site, venue, or other facility in safe custody at the Client’s own risk, maintain (or procure the maintenance of) Upset Materials in excellent condition until returned to Upset, and not dispose of or use Upset Materials (or procure that Upset Materials are not disposed of or used) other than in accordance with Upset’s written instructions or authorisation;
(xvii) comply with any additional obligations as set out in the Service Specification, the Goods Specification, and/or the Quote; and
(xviii) not, without the prior written consent of Upset, at any time from the date of this Contract to the expiry of twelve (12) months after the termination of this Contract, solicit or entice away from Upset or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of Upset in the provision of the Services, the supply of the Goods, or the hire of the Goods;
(b) If Upset’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any obligation (Client Default) without limiting or affecting any other right or remedy available to it, Upset shall have the right to suspend performance of the Services or the supply of the Goods until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Upset’s performance of any of its obligations;
(c) Upset shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Upset’s failure or delay to perform any of its obligations as set out in this clause 6.1(b);
(d) the Client shall reimburse Upset on written demand for any costs or losses sustained or incurred by Upset arising directly or indirectly from the Client Default; and
(e) the Client shall indemnify, and keep indemnified, on demand Upset and its officers, directors, employees, consultants, or subcontractors (each an Indemnified Person) for any and all liabilities, damages, expenses, claims and/or losses (including, but not limited to, any direct, indirect or consequential losses, loss of profit, loss of reputation, loss of opportunity to deploy resources elsewhere and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by an Indemnified Person arising out of or in connection with: (i) the Client’s fraud, negligence or failure to perform, or delay in the performance of, any of its obligations under a Contract; (ii) any complaints and/or claims by any third party; (iii) any enquiry or investigation by any Competent Authority regarding any alleged or actual breach by either the Client or Upset of any applicable laws and/or regulations as a result of any act or omission of the Client; (iv) any unauthorised grant and/or use of Upset’s Intellectual Property Rights by the Client, including any losses, costs, charges and expenses suffered as a result of defending or settling a claim alleging such a liability; (v) any fines and/or sanctions imposed on Upset by any Competent Authority due to an act or omission of the Client, in breach of a Contract; (vi) the acts and omissions of any Client employees, agents or subcontractors present at the relevant premises, site, venue or other facility and/or the surrounding areas at the times and dates upon which Upset or its officers, directors, employees, consultants, or subcontractors are supply the Goods and/or Services under the Contract; and (vii) any claim made against Upset for actual or alleged infringement of a third party’s rights (including, without limitation, Intellectual Property Rights) arising out of or in connection with Upset’s use of the Goods Specification, Service Specification, or Upset following the instructions, requests, terms, or directions of the Client from time to time. This clause shall survive termination of the Contract.
6.2 In the event that the Quote sets out that the Client shall hire the Goods from Upset the following clause shall apply in addition to clause 6.1:
(a) the Client shall during the Rental Period:
(i) ensure that the Goods are kept and operated in a suitable environment, 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;
(ii) take such steps (including, without limitation, compliance with all safety and usage instructions provided by Upset) as may be necessary to ensure that the Goods are at all times safe and without risk to health when it is being set, used, cleaned or maintained by any person;
(iii) maintain at its own expense the Goods in excellent condition and repair in order to keep it in as similar an operating condition as it was on the Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Goods;
(iv) make no alteration to the Goods and shall not remove any existing component (or components) from the Goods unless the component (or components) is (or are) replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved or advanced version of it. Title in all substitutions, replacements, renewals made in or to the Goods shall vest in Upset immediately on installation;
(v) keep Upset fully informed of all matters relating to the Goods;
(vi) permit Upset or its duly authorised representative to inspect the Goods at all reasonable times and for such purpose to enter on the relevant premises, site, venue or other facility at which the Goods may be located, and shall grant, or procure the grant of, access and facilities for such inspection;
(vii) maintain operating and maintenance records of the Goods and make copies of such records available to Upset upon request, together with such additional information as Upset may reasonably require;
(viii) not, without the prior written consent of Upset, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Goods or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(ix) not without the prior written consent of Upset, attach the Goods to any land or building so as to cause the Goods to become a permanent or immovable fixture on such land or building. If the Goods do become affixed to any land or building then the Goods must be capable of being removed without material injury to such land or building and the Client shall repair and make good any damage caused by the affixation or removal of the Goods from any land or building and indemnify Upset against all losses, costs or expenses incurred as a result of such affixation or removal;
(x) not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of Upset in the Goods and, where the Goods have become affixed to any land or building, the Client must take all necessary steps to ensure that the Client may enter such land or building and recover the Goods both during the Rental Period 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 Upset of any rights such person may have or acquire in the Goods and a right for Upset to enter onto such land or building to remove the Goods;
(xi) not suffer or permit the Goods to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Goods are so confiscated, seized or taken, the Client shall notify Upset and the Client shall at its sole expense procure an immediate release of the Goods and shall indemnify Upset on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
(xii) ensure that at all times the Goods remain identifiable as being Upset’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Goods;
(xiii) deliver up the Goods at the end of the Rental Period at such address as Upset requires, or if necessary allow Upset or its representatives access to the relevant premises, site, venue or other facility where the Goods are located for the purpose of removing the Goods; and
(xiv) not do or permit to be done anything which could invalidate the insurances referred to in clause 4.2(c); and
(b) the Client acknowledges that Upset shall not be responsible for any loss of or damage to the Goods arising out of or in connection with any negligence, misuse, mishandling of the Goods or otherwise caused by the Client or its officers, employees, agents and contractors, and the Client shall indemnify Upset in full against all liabilities, costs, expenses, damages and losses (including 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 professional costs and expenses) suffered or incurred by Upset arising out of, or in connection with any failure by the Client to comply with its obligations in this clause 6.2(a).
7. CHARGES AND PAYMENT
7.1 In the event that the Quote sets out that the Client shall purchase Goods from Upset the following clauses shall apply:
(a) the price for Goods: (i) shall be the price set out in the Quote (save for any increase in the price of the Goods set out in clause 7.1(b) below); and (ii) unless as otherwise set out in an Quote, shall be exclusive of all costs and charges of packaging, insurance, transport, import or export, or storage which shall be invoiced to the Client, and paid by the Client; and
(b) Upset reserves the right to increase the price of the Goods, by giving notice to the Client at any time before the Delivery Date, to reflect any increase in the cost of the Goods to Upset that is due to: (1) any factor beyond the control of Upset (including, without limitation, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (2) any request by the Client to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or (3) any delay caused by any instructions of the Client in respect of the Goods or failure of the Client to give Upset adequate or accurate information or instructions in respect of the Goods. Upset shall invoice the Client for any such increase in the price of the Goods, and the Client shall pay such invoice within forty-eight (48) hours unless otherwise agreed.
7.2 In the event that the Quote sets out that the Client shall hire Goods from Upset the following clauses shall apply:
(a) the Client shall pay to Upset the deposit as set out in the Quote (Deposit);
(b) the Parties acknowledge and agree that the Deposit is a deposit against default by the Client of payment of any Rental Payments or any loss of or damage caused to the Goods, and if the Client fails to make any Rental Payments in accordance with the payment schedule as set out in the Quote, or causes any loss or damage to the Goods (in whole or in part), Upset shall be entitled to apply the Deposit against such default, loss or damage;
(c) the Client shall pay to Upset any sums deducted from the Deposit within forty-eight (48) hours (unless otherwise agreed) of a demand for the same;
(d) the Deposit or balance of the Deposit (as applicable) shall be refundable within a reasonable period of time following the end of the Rental Period (for the avoidance of doubt where the balance of the Deposit has run to zero (0) nothing shall be refundable to the Client; and
(e) the Client shall pay the Rental Payments to Upset in accordance with the payment schedule set out in the Quote.
7.3 In the event that the Quote sets out that the Client shall receive a supply of Services from Upset the following clauses shall apply:
(a) the charges for Services shall be calculated on a time and materials basis and shall be as set out in the Quote;
(b) Upset shall be entitled to charge the Client for, and the Client shall pay on demand, any expenses incurred by the individuals whom Upset engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Upset for the performance of the Services, and for the cost of any materials; and
(c) Upset reserves the right to increase the price of the Services, by giving notice to the Client at any time before the performance of the Services, to reflect any increase in the cost of the Services to Upset that is due to: (1) any factor beyond the control of Upset (including, without limitation, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other costs); (2) any request by the Client to change the delivery date(s), quantities or types of Services ordered, or the Services Specification; or (3) any delay caused by any instructions of the Client in respect of the Services or failure of the Client to give Upset adequate or accurate information or instructions in respect of the Services. Upset shall invoice the Client for any such increase in the price of the Services, and the Client shall pay such invoice within forty-eight (48) hours unless otherwise agreed.
7.4 The Client shall pay each invoice submitted by Upset in full and in cleared funds in accordance with the terms set out in the Quote or the particular invoice.
7.5 The Client acknowledges and agrees that the time for payment shall be of the essence of the Contract.
7.6 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Upset to the Client, the Client shall pay to Upset such additional amounts in respect of VAT as are chargeable on the supply of the Services and/or Goods or hire of Goods, as applicable, at the same time as payment is due for the supply of the Services or Goods or hire of Goods.
7.7 All amounts payable by the Client under the Contract are exclusive of any other applicable taxes and duties or similar charges which shall be payable by the Client at the rate as made known to the Client from time to time.
7.8 The Client acknowledges and agrees that all amounts due to Upset under the Contract shall be paid in full on the due date for payment without any set-off, counterclaim, refund, or deduction or withholding (other than any deduction or withholding of tax as required by law).
8. INTELLECTUAL PROPERTY
8.1 The Client grants Upset a fully paid-up, non-exclusive, royalty-free, non-transferable, worldwide, irrevocable licence to copy, modify, or use any materials provided by the Client to Upset for the term of the Contract for the purpose of providing the Services or the Goods to the Client.
8.2 Upon the Delivery Date and the delivery of any Deliverables, Upset assigns to the Client absolutely the following rights throughout the world:
(a) the entire copyright and all other rights in the nature of copyright subsisting in the Goods and/or Deliverables;
(b) all other Intellectual Property Rights in the Goods and/or Deliverables of whatever nature, whether now known or created in the future, to which Upset is now, or at any time after the Commencement Date may be, entitled by virtue of the laws in force in the United Kingdom and in any other part of the world,
in each case for the whole term including any renewals, reversions, revivals and extensions and together with all related rights and powers arising or accrued, including the right to bring, make, oppose, defend, appeal proceedings, claims or actions and obtain relief (and to retain any damages recovered) in respect of any infringement, or any other cause of action arising from ownership, of any of these assigned rights, whether occurring before, on or after the Commencement Date.
8.3 Upset, being the sole author of the Goods and/or Deliverables, expressly waives absolutely their right to be identified as the author of the Goods, such right arising under section 77 of the Copyright, Designs and Patents Act 1988, and expressly waives absolutely all their other moral rights arising under the Copyright, Designs and Patents Act 1988 and, so far as is legally possible, any broadly equivalent rights they may have in any territory of the world.
9. LIMITATION OF LIABILITY
9.1 The limits and exclusions in this clause reflect the insurance cover Upset has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess liability.
9.2 References to liability in this clause 9 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3 The Client may not benefit from the limitations and exclusions set out in this clause 9 in respect of any liability arising from its deliberate default.
9.4 Nothing in the Contract limits any liability for: (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) any liability that legally cannot be limited; (d) any indemnities provided by the Client to Upset; (e) any breaches of clauses 12 and/or 13.8.
9.5 Subject to clause 9.4, Upset’s total liability to the Client shall not exceed the lesser of: (i) £10,000 (Ten Thousand Pounds Sterling); or (ii) the total amount actually paid in full and cleared funds by the Client to Upset.
9.6 The following types of loss are wholly excluded from Upset’s liability to the Client: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) wasted expenditure; (vi) loss of use or corruption of software, data or information; (vii) infringement of a third party’s rights (including, but not limited to, Intellectual Property Rights); (viii) loss of, depletion of, or damage to goodwill; and (ix) any special, indirect or consequential loss, costs, damages, charges, or expenses.
9.7 The Client acknowledges and agrees that the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.8 This clause 9 shall survive termination of the Contract.
10. TERMINATION
10.1 Without affecting any other right or remedy available to it, Upset may terminate the Contract with immediate effect by giving written notice to the Client if:
(a) the Client commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of seven (7) days after being notified to do so;
(b) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the Client’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy;
(e) the Client fails to pay any amount due under the Contract on the due date for payment;
(f) there is a change of control of the Client; or
(g) in the event that the Client hires the Goods, a Total Loss occurs in relation to the Goods.
10.2 Without affecting any other right or remedy available to it, Upset may suspend the supply of Services or supply of the Goods or hire of the Goods under the Contract or any other contract between the Client and Upset without any liability to the Client if the Client fails to pay any amount due under the Contract on the due date for payment, the Client becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d), or Upset reasonably believes that the Client is about to become subject to any of them.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract: (a) the Client shall immediately pay to Upset all of Upset’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied or Goods hired but for which no invoice has been submitted, Upset shall submit an invoice, which shall be payable by the Client immediately on receipt; (b) the Client shall return all of Upset Materials and any Deliverables or Goods which have not been fully paid for. If the Client fails to do so, then Upset may enter (and the Client shall procure such entry of) the premises where such Deliverables and/or Goods are and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose.
11.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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 Contract which existed at or before the date of termination or expiry.
11.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
12. CONFIDENTIALITY
12.1 Each Party will keep confidential the terms of the Contract and all Confidential Information received or obtained as a result of negotiating, preparing, executing, performing or implementing it which relates to the other Party or any agent or sub-contractor acting on its behalf.
12.2 Notwithstanding clause 12.1, either Party may disclose Confidential Information if and to the extent:
(a) required by law or by regulation (whether or not having the force of law), including the rules of the London Stock Exchange (in the event such rules are applicable to the relevant Party);
(b) required by any regulatory or governmental or other authority with relevant powers to which either Party, or their respective holding companies, is subject or submits (whether or not the authority has the force of law);
(c) required by its professional advisers, officers, employees, consultants, sub-contractors or agents to provide their services (and subject always to similar duties of confidentiality);
(d) that information is in or has come into the public domain through no fault of that Party; or
(e) that the other Party has given prior written consent to the disclosure.
12.3 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 the Contract.
12.4 The Client acknowledges that any breach or threatened breach of clauses 12 or 13.8 may cause Upset irreparable harm for which damages may not be an adequate remedy. Therefore, in addition to any other remedies and damages available to Upset, the Client agrees that Upset is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
12.5 The restrictions in this clause 12 shall continue to apply to the Parties following and notwithstanding termination or expiry of the Contract without limit in time.
13. GENERAL
13.1 Force majeure: Upset shall not be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event.
13.2 Assignment and other dealings: (i) Upset may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract; and (ii) the Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
13.3 Notices: (i) any notice given to a Party under or in connection with the Contract shall be in writing and shall be: (a) delivered by hand or pre-paid 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 (b) sent by email to the addresses (or an address substituted in writing by the Party to be severed) as set out in the Quote; (ii) any notice shall be deemed to have been received: (a) if delivered by hand, at the time the notice is left at the proper address; (b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am UK time on the second Business Day after posting; or (iii) if sent by email, twenty-four (24) hours after the time of transmission unless the sender has received an “out of office” notification and/or a notification that such email has not been successfully delivered, and provided that if deemed receipt occurs before 9:00am UK time on a Business Day the notice shall be deemed to have been received at 9:00am UK time on that day, and if deemed receipt occurs after 5:00pm UK time on a Business Day, or on any day which is not a Business Day, the notice shall be deemed to have been received at 9:00am UK time on the next Business Day, and in providing such transmission it shall be sufficient to prove that the email was sent to the email address of the recipient set out in the Quote and that dispatch of the transmission from the sender’s external gateway was confirmed; and (iii) 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.
13.4 Severance: if any provision or part-provision of the Contract 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 the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 13.4 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
13.5 Further assurance: At the Client’s cost and 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 the Contract.
13.6 Waiver: (i) except as set out in clause 2.7, a waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy; and (ii) a failure or delay by a Party to exercise any right or remedy provided under the Contract 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 the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.7 No partnership or agency: nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties, constitute either Party the agent of the other, or authorise either Party to make or enter into any commitments for or on behalf of the other Party.
13.8 Announcements: Neither Party shall make or release any statements or announcements to the press, other media or any third party regarding the conclusion of, terms of or termination of this Contract unless such statements or announcements have been approved by the other Party.
13.9 Entire agreement: the Contract constitutes the entire agreement between the Parties; (ii) each Party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Contract; and (iii) each Party agrees that it has no claim for innocent or negligent misstatement based on any statement in the Contract.
13.10 Third party rights: Save for each Indemnified Person being able to enforce the provisions of clause 6.1(e): (i) the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract; and (ii) the rights of the Parties to rescind or vary the Contract are not subject to the consent of any other person.
13.11 Variation: (i) subject to clause 13.11(ii), no variation of the Contract shall be effective unless it is agreed in writing and signed by the Parties (or their authorised representatives); and (ii) Upset may vary these Conditions from time to time with immediate effect on written notice to the Client (the Client’s continued receipt of the supply of Goods, hire of Goods, or supply of Services shall constitute the Client’s acceptance of the variation).
13.12 Governing law and jurisdiction: (i) the Contract 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; and (ii) 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 the Contract or its subject matter or formation.