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The term "Big Bear Plastic Products Limited" or "us" or "we" refers to the owner of the website whose registered office is Big Bear Plastic Products Limited, Hampton Lovett, Droitwich, Worcester, WR9 0NX. The term "you" refers to the user or viewer of our website.
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BIG BEAR PLASTIC PRODUCTS LIMITED TERMS AND CONDITIONS OF SALE (MARCH 2015)
You may also download the Terms and Conditions of Sale document.
1.1 Definitions. In these Terms, the following definitions apply:
Big Bear: Big Bear Plastic Products Limited, registered in England and Wales with company number 03611491 whose registered office is at 29 Waterloo Road, Wolverhampton, WV1 4DJ.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Terms: the terms and Terms set out in this document as amended from time to time in accordance with clause 15.4.
Contract: the contract between Big Bear and the Customer for the sale and purchase of the Goods in accordance with these Terms.
Customer: the person or firm who purchases the Goods from Big Bear.
Customer's Tools: any tools supplied by the Customer to Big Bear or tooling ordered and paid for by the Customer to be used by Big Bear in the manufacture of the Goods.
Goods: the Goods or services (or any part of them) set out in the Order.
Order: the Customer's order for the Goods or services, as set out in these terms or the Customer's written acceptance of Big Bear's quotation.
Signed Off Master Sample: a sample of the Goods to be manufactured by Big Bear that has been produced using the material and the tooling that is to be used for the manufacture of the Goods and that has been agreed by Big Bear and the Customer as being representative in all material ways to the final Goods and Specification.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Big Bear.
1.2 Construction. In these Terms, the following rules apply:
(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 representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF THE CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate. Where a Customer’s order is accompanied by the Customer’s own terms of purchase, the contract shall be satisfied in accordance with Big Bear’s terms unless agreed in writing by both parties.
2.2 The Order shall only be deemed to be accepted when Big Bear issues a written acceptance of the Order, at which point the Contract shall come into existence. Where the Customer has requested, and Big Bear has agreed, that no written acceptance of the order be issued, then the Contract shall come into existence no later than three working days after receipt of the Order.
2.3 Big Bear reserves the right to refuse to accept an Order or require amendment to an Order upon receipt of the Customer's Tools.
2.4 An Order or part thereof may not be cancelled or modified by the Customer in any respect without the express written consent of Big Bear once the Contract has come into existence. The Customer is obliged to notify Big Bear as soon as it becomes aware of any discrepancy and in any event prior to the dispatch of the Goods. Cancellation of the order will be in accordance with the terms of clause 6.
2.5 All drawings supplied to Big Bear by Customers shall be reviewed with regard to tolerances that are stated in the Specification. Tolerances can be influenced by choice of raw material and the finishing method of the Goods employed. Big Bear shall confirm the manufacturing tolerances it shall achieve for each individual component to be manufactured prior to accepting any Order.
To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Big Bear 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 and other reasonable professional costs and expenses) suffered or incurred by Big Bear in connection with any claim made against Big Bear for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Big Bear's use of the Specification. This clause 3 shall survive termination of the Contract.
4.1 Unless otherwise agreed in writing by Big Bear, the Goods shall be delivered EXW (ex works) at Big Bear Plastic Products Limited, Fantastic Works, Hampton Lovett, Droitwich, Worcestershire, WR9 0NX Incoterms 2010.
4.2 Where the terms of clause 4.1 are waived, for sea and inland waterway transport only, unless otherwise agreed in writing by Big Bear delivery of the Goods shall be FOB (free on board) Incoterms 2010. The Customer shall be responsible for and pay all freight, shipping and insurance costs and charges for delivery beyond the stipulated FOB point. Any arrangements or service agreed and undertaken by Big Bear for such shipment and delivery will be rendered solely for the benefit and account of the Customer and any sums which Big Bear may advance in connection therewith may, at the sole discretion of Big Bear, be added to the invoice for the Goods or separately invoiced to the Customer by Big Bear.
4.3 Any times for shipment of delivery stated to the Customer are estimates only. Time will not be of the essence for delivery and shall not be made of the essence by notice. Shipment times will be based on Big Bear’s scheduling requirements and are not guaranteed.
4.4 The Customer shall not be entitled to reject the Goods if Big Bear delivers up to and including 5% more or less than the quantity of Goods ordered.
5. PRICE AND PAYMENT
5.1 The price of the Goods shall be the price set out in the Order.
5.2 Big Bear may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Big Bear's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Big Bear adequate or accurate information or instructions; or
(d) factors relating to the Customer's Tooling.
5.3 Unless agreed in writing, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
5.4 Big Bear may invoice the Customer for the Goods on or at any time after the completion of delivery. Where the Customer fails to collect goods within five working days of the later of either the Customer’s required collection date or the date on which Big Bear advises that the Goods are available for collection, then Big Bear shall invoice the full price of the Goods, and the Customer shall pay the invoice to their agreed normal terms.
5.5 Any and all sales, use, excise or other tax imposed by any governmental authority arising out of, or relating to the sale, or to the Goods sold and delivered will be the sole responsibility of the Customer and is not included in the quoted price. The Customer shall pay or reimburse Big Bear for any such tax, or other such amount that Big Bear may be required to collect and Big Bear shall have the right, at the sole discretion of Big Bear, to request and to receive the invoice from the Customer, or other party, or to separately invoice the Customer, for the amount, or part thereof, of any such taxes. If the Customer is exempt from any taxes otherwise applicable, a satisfactory certificate of exemption must be delivered to Big Bear upon demand, before invoicing.
5.6 Payment of the purchase price of any Order, together with the amount of any taxes and/or freight, shipping and insurance costs included in the invoice, will be due and payable in full, in sterling without setoff or deduction whatsoever, to Big Bear, strictly at the end of the month in which the invoice is dated plus 30 days, except in the case of Orders where differentterms are expressly agreed by Big Bear in writing beforehand. Time of payment shall be of the essence. Any payments not made by the due date for payment shall bear interest on the unpaid balance at the rate of the Bank of England base lending rate from time to time plus 8%. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. If the Customer defaults on payment of any outstanding invoices, the Customer agrees to pay Big Bear’s costs of collection, including legal fees.
6 TERMINATION AND SUSPENSION
6.1 If the Customer becomes subject to any of the events listed in clause 6.2, Big Bear may terminate the Contract with immediate effect by giving written notice to the Customer.
6.2 For the purposes of clause 6.1, the relevant events are:
(a) 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, 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;
(b) 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 (where the Customer is a company) where these events take place 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;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or inconnection with the winding up of the Customer, 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;
(d) (being a company) 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 Customer;
(e) (being a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(g) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(h) 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 its assets and such attachment or process is not discharged within 14 days;
(i) 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 6.2(a) to clause 6.2(f) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the Customer's financial position deteriorates to such an extent that in Big Bear's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
6.3 Without limiting its other rights or remedies, Big Bear may suspend provision of the Goods under the Contract or any other contract between the Customer and Big Bear if the Customer becomes subject to any of the events listed in clause 6.2(a) to clause 6.2(l), or Big Bear reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
6.4 On termination of the Contract for any reason the Customer shall immediately pay to Big Bear all of Big Bear's outstanding unpaid invoices and interest (including but not limited to any invoices raised under clause 6.5.
6.5 In the event of termination, Big Bear shall invoice the Customer for those costs incurred by Big Bear in relation to the Contract and which had not been issued prior to termination of the Contract. Such costs shall include but are not limited to tooling costs, raw materials, work in progress and finished Goods which remain in Big Bear’s possession. The invoice shall be payable in accordance with the terms at clause 5.6.
6.6 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
6.7 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
7. PROJECT MANAGEMENT
7.1 As part of the Contract, the Customer and Big Bear may engage in the development and management of a bespoke product for a specific project (the “Project”). Big Bear understands that the Project may be dependent upon a third party end customer.
7.2 The Customer acknowledges that Big Bear will commit significant resources and incur substantial costs in relation to the Project. These resources and costs include but are not limited to labour, administration, materials and travel expenses.
7.3 Should the Customer cancel the Project prior to production, for any reason outside the control of Big Bear, Big Bear shall be entitled to invoice the Customer for all reasonable direct and indirect costs which are incurred as a result of the Project.
7.4 Payment of any invoice raised in accordance with clause 7.3 will be due and payable in full, in sterling, without setoff or deduction to Big Bear in accordance with the terms at clause 5.6.
8. FORCE MAJEURE
Big Bear shall have no liability or obligation to the Customer or any other person for any loss or damage of any kind arising out of any delay in making, or failing to make, shipment or delivery of any Order where such is the result of any act of God, strikes, lockouts, war, fire, breakdown of plant or machinery, inability of Big Bear to receive or delay in receiving raw materials, request, order or action of any governmental authority or agency, or any other cause or circumstance, whether similar or dissimilar, beyond the reasonable control of Big Bear. If by reason of any such cause or circumstance, the availability of the Goods ordered is partially or wholly curtailed or if Big Bear shall otherwise be unable to make delivery, then delivery may, at the sole discretion of Big Bear, be either proportionately (Big Bear allocating its available supply among its customers in such manner as Big Bear deems fair and equitable) or wholly suspended and resumed upon removal of the impending cause; or Big Bear may at its sole discretion cancel the Order, or such part as remains undelivered, without further obligation to the Customer.
9.1 Subject to the following provisions, Big Bear warrants that on delivery the Goods shall:
(a) conform in all material respects with the Specification and to the Signed Off Master Sample;
(b) be free from material defects in design, material and workmanship for a period of three years from the date of first supply.
9.2 Big Bear thermoformed parts should be evaluated in consideration of the process technology which causes moulded parts to have characteristics and features which are unique to the process. The Customer should ensure they are familiar with these characteristics and that parts supplied by Big Bear fully meet all aspects of their requirements. Whilst Big Bear will provide all technical, design and development support, it is not Big Bear's responsibility to ensure parts perform satisfactorily in an environment associated with the customer's specialised application. Production samples are the key element in establishing the standard for all parts and Big Bear supply warranty is based on the customer and Big Bear each holding a Signed Off Master Sample. Big Bear are manufacturers of moulded parts from sheet plastic. This process includes forming the plastic sheet, (the forming or moulding operation) during this process the characteristics of the sheet may change by any of the following ways or by other unspecified phenomenon:
- Material gauge can decrease.
- Surface finish can change e.g. gloss level can increase/decrease.
- Surface texture can change – grain stretch etc.
- Plastic moulded parts are not always dimensionally stable.
Examples of un-warranted applications.
Material supplier's warranties do not automatically extend to the plastic sheet material when it is converted to a moulded part. Big Bear do not warrant parts affected by outside agencies or applications. Customers should ensure moulded/finished parts meet all their performance requirements for specific applications.
Particular consideration should be given to parts which could be affected by the following:
- UV exposure
- Impact performance
- Flexural performance
- Temperature stability at high and low temperature
- Colour stability
- Gloss stability
- Surface texture stability
- Storing or fixing in a stressed condition
- Fumes, chemicals (including oil and petrol), cleaning fluids, adhesives, spillages, heat, cold, salt water, UV and any other substances or conditions that may cause damage to the part of the material or any secondary applications etc.
9.3 Subject to clause 9.4, if:
(a) the Customer gives notice in writing to Big Bear within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 9.1;
(b) Big Bear is given a reasonable opportunity of examining such Goods (which at the discretion of Big Bear may be by way of a physical inspection or via photographic evidence which the Customer shall provide at Big Bear’s request); and
(c) the Customer (if asked to do so by Big Bear) returns such Goods to Big Bear's place of business at the Customer's cost,
Big Bear shall, at its option, replace the defective Goods, or issue a credit note to the Customer for the price of the part or parts of the defective Goods.
Big Bear shall not be liable for Goods' failure to comply with the warranty set out in clause 9.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 9.3;
(b) the defect arises because the Customer failed to follow Big Bear's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Big Bear following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Big Bear;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working Terms;
(f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
(g) the Goods are used to form part of an assembly designed and built by the Customer; or
(i) the Goods are manufactured using tools supplied by the Customer to Big Bear.
9.5 Except as provided in this clause 9, Big Bear shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 9.1.
9.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9.7 These Terms shall apply to any repaired or replacement Goods supplied by Big Bear. The warranty period for repaired goods shall not be extended beyond the warranty given at clause 9.1.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Terms shall limit or exclude Big Bear's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for Big Bear to exclude or restrict liability.
10.2 Subject to clause 10.1:
(a) Big Bear shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Big Bear's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the defective Goods.
11. TITLE AND RISK
11.1 The risk in the Goods shall pass to the Customer on completion of delivery. Alternatively, where the Customer fails to collect the Goods within five working days of the later of either the Customer’s required collection date or the date on which Big Bear advises that the Goods are available for collection, risk in the Goods shall pass to the Customer at the end of that period.
11.2 Title to the Goods shall not pass to the Customer until:
(a) Big Bear receives payment in full (in cash or cleared funds) for the Goods; and
(b) Big Bear receives payment in full (in cash or cleared funds) for any other Goods that Big Bear has supplied to the Customer in respect of which payment has become due.
11.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other Goods held by the Customer so that they remain readily identifiable as Big Bear's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Big Bear immediately if it becomes subject to any of the events listed in clause 6.2; and
(e) give Big Bear such information relating to the Goods as Big Bear may require from time to time.
11.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 6.2, then, without limiting any other right or remedy Big Bear may have Big Bear may at any time:
(a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
12. CUSTOMER INDEMNITY
The Customer shall indemnify Big Bear 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 Big Bear arising out of or in connection with the Customers Tools, the Project or the Customer’s breach of clauses 13 and 14 of the Contract.
The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by Big Bear, its employees, agents or subcontractors, and any other confidential information concerning Big Bear’s business, its products and services which the Customer may obtain. The Customer shall only disclose such confidential information to those of its employees, who need to know it for the purpose of entering into the Contract, and shall ensure that such employees comply with the obligations set out in this clause as though they were a party to the Contract.
14. INTELLECTUAL PROPERTY
14.1 The Customer acknowledges that there may be instances where Big Bear generates and presents design concepts, styling or drawings to the Customer for consideration or use in current or future projects.
14.2 The Customer shall have no rights in respect of any Intellectual Property Rights of Big Bear however used by Big Bear and irrespective of whether the design is commissioned and paid for by the Customer and the Customer hereby acknowledges that it shall not acquire any rights in respect thereof and that all Intellectual Property Rights are and shall remain vested in or controlled by Big Bear.
14.3 The Customer shall not use any trade marks or names so resembling Big Bear’s trade marks as to be likely to cause confusion or deception.
14.4 For the purposes of this clause 14, (“Intellectual Property Rights”) shall mean patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing. Any notice given to Big Bear shall be addressed to Fantastic Works, Hampton Lovett, Droitwich, Worcestershire, WR9 0NX and any notice given to the Customer shall be addressed to its registered office (if it is a company) or its principal place of business (in any other case) or such other address as the other party may have specified in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.1 (a) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.2 These Terms are to be governed by the laws of England and the Customer hereby agrees to submit to the non-exclusive jurisdiction of the English courts.
15.3. The Customer confirms that, in agreeing to accept these Terms, it has not relied on any representation save insofar as the same has expressly been made a part of these Terms and the Customer agrees that it shall have no remedy in respect of any representation.
15.4. No consent, modification or waiver in respect of any provision of these Terms shall be binding, unless made in writing and signed by or on behalf of each of the parties to the these Terms.
15.5 No third party shall be allowed to enforce any rights under this contract and the application of the Contracts (Rights of Third Parties) Act 1999 to any contract made under these Terms is hereby excluded.
15.6 Big Bear may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.7 The Customer must not at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with the Contract without written authority from Big Bear.
15.8 If any provision or part-provision of the Contract 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 the Contract.
15.9 If any provision or part-provision of this Contract 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.
15.10 No failure to exercise or delay in exercising any right, power or remedy provided by law or under these Terms shall operate to impair the same or be construed as a waiver of it. No single or partial exercise of any such right, power or remedy shall preclude or restrict any further or other exercise of the same or the exercise of any other right, power or remedy. No waiver of any such right, power or remedy shall constitute a waiver of any other right, power or remedy. Except as expressly provided in these Terms, the rights, powers and remedies provided in these Terms are cumulative and not exclusive of any rights, powers or remedies provided by law.
15.11. These Terms apply exclusively to any contract between Big Bear and the Customer Under no circumstances will any terms and Terms introduced by the Customer take priority over these Terms.