3. Equipment Supply and Specification Amendments
3.1 The Equipment to be supplied is set out in the Order and/or the Project Scope of Work. 3.2 If the Customer supplies Customer Documentation in connection with the supply of Equipment and/
or Services by Creative Play under the Contract: a) the Customer shall be responsible for making sure the details shown in any such documents: i) meet all statutory or regulatory requirements (including any planning and building regulations); and ii) are fit for the intended purposes; b) Creative Play shall not be liable for any loss or damage arising from errors or omissions in such Customer Documentation; and c) the Customer shall indemnify Creative Play against all liabilities, losses, damages, costs and expenses suffered or incurred by Creative Play in connection with any claim made against Creative Play, arising from the use of the Customer Documentation, including without limitation, for infringement of a third party’s rights or non-compliance with any statutory or regulatory requirements. 3.3 Creative Play reserves the right to amend the specification or design for the Equipment and/or Playground if required by any applicable statutory or regulatory requirement, and Creative Play shall notify the Customer in any such event. Notwithstanding any such amendments, Creative Play does not assume liability in respect of any errors or omissions in the Customer Documentation nor any failure to comply with any statutory or regulatory requirements, unless directly caused by Creative Play as a result of any such amendment. 3.4 Creative Play will be under no obligation to make amendments to the agreed specification or design once the Contract is formed. Creative Play may, at its own discretion, make such amendments if requested by the Customer, and shall be entitled to make variations to the price that is necessary as a result. 3.5 Creative Play has the right to amend/vary/change the Equipment without the Customer having the right to terminate the contract so long as the change does not materially and prejudicially affect the nature of the Equipment or the price by more than 10%.
4. Delivery of Equipment (SUPPLY ONLY)
4.1 Where and to the extent that the Contract relates to supply of Equipment only, the Customer shall be solely responsible for the installation of such Equipment. Creative Play shall have no liability for any installation related issues or defects arising from the Customer’s installation of the Equipment. The Customer shall be solely responsible for ensuring that the installation is carried out in accordance with the manufacturer’s instructions and Creative Play’s instructions (if any), and all applicable laws and regulations. 4.2 Creative Play shall deliver the Equipment to the location set out in the Order, or such other location as the parties may agree, at any time after Creative Play notifies the Customer that the Equipment is ready. 4.3 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. In any event, Creative Play shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer’s failure to provide Creative Play with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment. 4.4 If Creative Play fails to deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Equipment. Creative Play shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Creative Play with adequate delivery instructions for the Equipment or any relevant instruction related to the supply of the Equipment. 4.5 If the Customer fails to accept or take delivery of the Equipment within 10 Business Days of Creative Play notifying the Customer that the Equipment is ready, then except where such failure or delay is caused by a Force Majeure Event or by Creative Play’s failure to comply with its obligations under the Contract in respect of the Equipment: a) delivery of the Equipment shall be deemed to have been completed at 9.00 am on the 10th Business Day following the day on which Creative Play notified the Customer that the Equipment is ready; and b) Creative Play shall store the Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including insurance). 4.6 If 20 Business Days after Creative Play notified the Customer that the Equipment is ready for delivery the Customer has not accepted delivery of it, Creative Play may resell or otherwise dispose of part or all of the Equipment and the Contract shall be deemed terminated as a result of the Customer’s breach of contract. 4.7 If the Contract is deemed terminated in accordance with clause 4.6, Creative Play shall be entitled to retain the Deposit and, to the extent such costs are not covered by the Deposit, the Customer shall pay for any expenses and/or costs incurred by Creative Play up to the date of termination.
5. Equipment Warranties
5.1 Creative Play warrants that the Equipment shall: a) on delivery and for a period of two (2) years from the date of the relevant invoice, conform in all material respects with its Specification; and b) on delivery conform to BSEN1176/77 (as in force from time to time). 5.2 In addition to the standard warranty provided under clause 5.1, Creative Play may offer additional manufacturer guarantees on certain Equipment it manufacturers for a specified period as more particularly set out in the Manual and available at: https://creativeplayuk.com/guaranteesmaterials/, subject to any conditions and exclusions contained therein, and as may be updated by Creative Play from time to time. In the event of any conflict between any warranty terms set out in these Conditions and the Manual and/or Creative Play’s website, the terms set out in these Conditions shall prevail. 5.3 Except as set out in clauses 5.1 and/or 5.2, Creative Play makes no other warranty and makes no representation as to description or quality and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. 5.4 Subject to clause 5.5, if within the Warranty Period: a) the Customer gives notice in writing within a reasonable time of discovery that some or all of the Equipment does not comply with the warranties set out in clause 5.1 and 5.2; b) Creative Play is given a reasonable opportunity of examining such Equipment; and c) the Customer (if asked to do so by Creative Play) returns such Equipment to Creative Play; Creative Play shall, at its option, repair or replace the defective Equipment. 5.5 Creative Play shall not be liable for the Equipment’s failure to comply with the warranties in clauses 5.1 or 5.2 if: a) the Customer makes any further use of such Equipment after giving a notice in accordance with clause 5.4; b) the defect arises because the Customer failed to follow Creative Play’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment, including without limitation as set out in the Manual, or (if there are none) good trade practice; c) the defect arises as a result of Creative Play following the Customer’s Documentation; d) the Customer alters or repairs such Equipment without the written consent of Creative Play; e) the defect arises as a result of fair wear and tear, vandalism, wilful damage, negligence, abnormal working conditions, or unauthorised modifications to the Equipment; f) the defect arises as a result of damage caused by natural events including without limitation wind, fire, or flood; g) the defect arises due to the condition of the site or other property; or h) the Equipment differs from its Specification as a result of changes made to ensure they comply with applicable statutory/regulatory standards or have been altered in accordance with the terms of the Contract. 5.6 Creative Play will use reasonable endeavours to obtain manufacturer warranties on any Equipment sourced by it from third parties. 5.7 Installation of the replacement Equipment under manufacturer warranty may incur additional installation charges at Creative Play’s then standard rates. 5.8 Unless otherwise specified by Creative Play, all Warranty Periods specified for the relevant Equipment shall be calculated from the date of invoice. 5.9 If the Customer wishes to make a warranty claim, it must provide invoice details, copies of inspection reports, photographs, and a description of the fault. 5.10 The Customer shall report any Equipment failure to Creative Play promptly. 5.11 Except as provided in this clause 5, Creative Play shall have no liability to the Customer in respect of the Equipment’ failure to comply with the warranty set out in clause 5.1 and/or 5.2 (as applicable). 5.12 This Customer should be aware that Rubber Mulch Safety Surfacing is a recycled material which coloured using a coating pigment. As such no guarantee is given as to the colourfastness of the product. Colours may vary between batches and no consistency of colour is guaranteed or warranted. Further information is provided in the Safety Surfacing Information Sheet. 5.13 The terms of these Conditions shall apply to any repaired or replacement
Equipment supplied by Creative Play.
6. Title and Risk
6.1 The risk in the Equipment shall pass to the Customer on delivery. 6.2 Notwithstanding delivery and passing of risk under clause 6.1, title to the Equipment shall not pass to the Customer until Creative Play receives payment in full (in cash or cleared funds) for: (i) the Equipment and/or Services the subject of the Contract; and (ii) all other goods and/or services supplied to the Customer under any contract whatsoever, in which case title to the Equipment shall pass at the time of payment of all such sums. For the purposes of this clause 6.2, payment of the full price shall include, without limitation, the amount of any interest or other sums payable under the terms of the Contract and all other contracts between the Customer and Creative Play. 6.3 Until title to the Equipment has passed to the Customer, the Customer shall: a) maintain the Equipment in satisfactory condition and keep them insured against all risks for their full price on Creative Play’s behalf from the date of delivery; b) notify Creative Play immediately if it becomes subject of any insolvency event; and c) give Creative Play such information relating to the Equipment as Creative Play may require from time to time. 6.4 If before title to the Equipment passes to the Customer (i) the Customer becomes subject to an insolvency event, and/or (ii) Creative play terminates the contract, without limiting any other right or remedy, Creative Play may require the Customer to return the Equipment to Creative Play (at the Customer’s cost) and if the Customer fails to return the Equipment within 5 Business Days of Creative Play demanding their return, Creative Play may enter any premises of the Customer where the Equipment are stored in order to recover them.
7. Supply of Services
7.1 Creative Play shall use all reasonable endeavours to meet any performance and completion dates for the Services but any such dates shall be estimates only and time shall not be of the essence for the performance and/or completion of the Services. 7.2 Further to clause 7.1, the Customer acknowledges that floor markings may be handled by a separate team, which could result in the application of such markings occurring after the completion date of the other Services. 7.3 In any event, Creative Play shall not be liable for any delay in delivery of the Services that is caused by a Force Majeure Event or the Customer’s failure to provide Creative Play with adequate delivery instructions or any other instructions that are relevant to the supply of the Services. 7.4 Creative Play will endeavour to give the Customer two weeks’ notice of when the Equipment is ready and installation is to begin. 7.5 Creative Play will carry out a preinstallation inspection of the site. If that inspection identifies previously unknown issues then Creative Play shall have the right to vary the price and the Services and/or Equipment to take account of any such changes. 7.6 Creative Play shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, and/or which do not materially affect the nature or quality of the Services. 7.7 Creative Play reserves the right to amend, vary or change the Services on reasonable notice taking into account the relevant circumstances, without the Customer having the right to terminate the Contract, provided that the change does not materially and prejudicially affect the nature of the Services or the price by more than 10%. 7.8 If the Customer has any special requirements in relation to the condition of the site when it is handed back to the Customer following Practical Completion, these requirements shall be notified to Creative Play during the pre-installation inspection. In the absence of Creative Play being informed about any such requirements and agreeing to them, Creative Play shall only be required to return the site to the Customer in a tidy condition with no betterment (save for the betterment as a result of project itself). 7.9 Creative Play warrants to the Customer that the Services will be provided: a) using reasonable care and skill; and b) substantially in accordance with the Project Scope of Work. 7.10 Unless drawings and plans of any underground services or pipes are provided to Creative Play before the Services commence, including but not limited to electric, gas, drains, water and telephone, Creative Play shall not be liable for damage caused or subsequent damage, repair or disruption to any underground services or pipes. 7.11 The Equipment shall not be used by the Customer or anyone under the Customer’s control until Practical Completion has taken place. Additionally, rubber surfacing requires a curing period and the surface should not be used by the Customer until that curing process has taken place (which usually takes approximately 48 hours). Creative Play accepts no liability whatsoever for any injury or loss caused as a result of use of the Equipment in contravention of this provision. 7.12 Although Creative Play shall take reasonable steps to avoid causing damage to floor, surfaces and access routes, it shall not be liable for such damage (unless caused by Creative Play’s negligence or wilful default) when the Customer has given permission to access such floor, surface or access routes. 7.13 If Services are being supplied at a time when persons under the control of the Customer may gain access to the location/area where the Services are being provided, the Customer shall be solely and exclusively responsible for ensuring that those persons are kept a safe distance away from where the Services are being carried out and/or Equipment stored or being used. 7.14 Creative Play will cordon off the installation area using temporary orange fencing. If the Customer requires different or more substantial fencing, the Customer must advise Creative Play before the commencement of Services. There will be an additional cost in respect of obtaining that fencing. 7.15 Creative Play shall, at its reasonable discretion, determine when the Services have been practically or substantially completed (‘Practical Completion’). 7.16 Following Practical Completion, Creative Play will issue the customer with a Handover Sign Off Sheet. If the Customer identifies any snagging, defects or post completion issues, these must be identified with 14 days of receipt of the Handover Sign Off Sheet. 7.17 Completion will take place on the earliest of the following: a) Date the customer signs the Handover Sign Off Sheet; b) 14 days after receipt of the Handover Sign Off Sheet; or c) 28 days after Practical Completion. 7.18 If the Contract includes the provision of maintenance Services, Creative Play shall use reasonable endeavours to provide such services substantially in accordance with the agreed Maintenance Services Package. 7.19 It is the Customer’s responsibility to ensure that the Maintenance Service Package it has selected is suitable and satisfies the Customer’s requirements. 7.20 Maintenance Services shall include labour costs of repairing the Equipment where faults have occurred through fair wear and tear during the agreed maintenance term. 7.21 Maintenance Services shall not include: a) repairs to Equipment where damage was caused as a result of the Customer’s failure to follow any instructions of Creative Play in relation to the use, maintenance and safety of the Equipment; b) routine cleaning and maintenance of the Equipment, which shall be the responsibility of the Customer; or c) any other matters specifically excluded in the relevant Maintenance Services Package.
8. Customer’s Obligations
8.1 The Customer shall, in relation to the supply of the Equipment and/or Services (as applicable): a) ensure that the terms of the Order and any details in the Specification or other information given in relation to the Equipment and/or Services are complete and accurate; b) ensure that the Specification meets the Customer’s requirements; c) co-operate with Creative Play in all matters relating to the Services; d) provide Creative Play its employees, agents, consultants and subcontractors, with access to the Customer’s premises and other facilities as reasonably required by Creative Play to provide the Services including details of any site requirements and/or limitations which may affect the provision of the Services; e) provide, in a timely fashion, Creative Play with such information and materials as Creative Play may reasonably require to supply the Equipment and Services, and ensure that such information is accurate in all material respects; f) prepare the site for the supply of the Services including following any reasonable instructions that Creative Play issue in respect of such preparation; g) provide Creative Play with access to the site when required, including out of normal operating hours if requested; h) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start, including (but not limited to) any planning permission as may be required in relation to the Services and/or the installation of the Playground; i) comply with all applicable laws, including (but not limited to) health and safety, planning and building control laws; j) obtain and maintain adequate insurance policies at all times during the period when the Services are provided to cover any loss of or damage to any existing structures and contents on the site where Creative Play carries out the Services and any floor, surfaces and access routes; k) keep and maintain all Creative Play Materials at the Customer’s premises in safe custody; l) ensure that an authorised representative is present at the time of installation or any preparatory work being carried out in order to ensure access to the site and provide confirmation as to design and layout; m) cooperate with Creative Play to complete the handover and/or sign-off process; n) be entirely responsible for the safe use of the Equipment after Creative Play have installed them and in accordance with Creative Play’s user guidelines and recommendations for the relevant Equipment; o) provide Creative Play’s staff with suitable facilities and utilities to enable the Services to be provided. In particular, if the Customer is not able to give access to toilet facilities then Creative Play shall hire portable facilities and the Customer will bear the cost of that; p) follow all of Creative Play’s reasonable instructions in relation to the Equipment and/or Services; q) maintain the Equipment in accordance with the Manual and comply with all other oral or written instructions of Creative Play as to the storage, installation, commissioning, use, cleaning, aftercare
or maintenance of the Equipment; and r) comply with any additional obligations as set out in the confirmed Order. 8.2 The Customer shall ensure that the Equipment is inspected regularly in accordance with BSEN1176, the safety standard governing playground equipment, and in accordance with the Manual. The Customer acknowledges that regular inspections are necessary to confirm that the Playground equipment and surface are safe to use and to identify any developing problems. The Customer shall report any such problems as soon as they occur. Creative Play may request copies of the Customer’s inspection reports and maintenance records if an enquiry is made under any warranty. 8.3 If Creative Play’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (‘Customer Default’): a) Creative Play shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Creative Play’s performance of any of its obligations; b) Creative Play shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer Default; c) the Customer shall reimburse Creative Play on written demand for any costs or losses sustained or incurred by Creative Play arising directly or indirectly from the Customer Default; and d) Creative Play shall have option to increase the price to take account of the Customer’s failure to comply with its obligations.
9. Service Cancellations and Postponement Charges
9.1 The Customer agrees that the charges set out in this clause 9 are a genuine pre-estimate of Creative Play’s loss arising from late cancellation, failed access, or postponement of scheduled Services, reflecting resource allocation, mobilisation, manufacturing, logistics and lost capacity. 9.2 Cancellation. Where Creative Play has agreed to provide the Services comprising maintenance or annual inspection, and (i) the Customer cancels such Services within 7 days or less before the planned date of visit on site, or (ii) Creative Play is unable to provide any such Services due to access to the site being denied or otherwise unavailable, Creative Play shall be entitled to charge the Customer: a) a cancellation charge equivalent to fifty percent (50%) of the applicable Service price; and b) where any Equipment has been manufactured in respect of such Service, an amount equal to the value of such Equipment (and, for the avoidance of doubt, excluding any associated labour charges that have not been incurred or will not be incurred as a result of the cancellation). 9.3 Postponement. Where Creative Play has agreed to provide the Services comprising maintenance or annual inspection, and the Customer requests a postponement of such Services: a) within 7 days or less before the planned date of visit on site, Creative Play shall be entitled to charge the Customer a postponement charge equivalent to ten percent (10%) of the applicable Service price; and b) within 48 hours or less before the planned date of visit on site, Creative Play shall be entitled to charge the Customer a postponement charge equivalent to twenty five percent (25%) of the applicable Service price, plus any individually calculated mileage, hourly rate and accommodation costs and expenses incurred or committed by Creative Play. 9.4 Charges under this clause 9 are payable on demand and may be invoiced separately or deducted from any Deposit or other sums held by Creative Play.
10. Charges and Payments
10.1 The price for Equipment and Services shall be the price set out in the Order or, if no price is quoted, the price set out in Creative Play’s published price list as at the date of the Order. 10.2 If Creative Play is required to perform any Services or supply any Equipment over and above that which forms part of the original Order, Creative Play reserves the right to charge for the additional Equipment and/or Services in accordance with the standard rates in force at the time. 10.3 Creative Play may increase the price of the Equipment and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Equipment to Creative Play that is due to: a) any factor beyond the control of Creative Play (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) and dates for installation, quantities or types of Equipment ordered; or c) any delay caused by any instructions of the Customer in respect of the Equipment and/or Services or failure of the Customer to give Creative Play adequate or accurate information or instructions in respect of the Equipment and/or Services. 10.4 Creative Play may, at its sole discretion, ask for payment of part of the price in advance of provision of the Equipment and/or Services (the “Deposit”). Where Creative Play requires a Deposit, the amount will be specified in the quotation. 10.5 Where a Deposit is payable, a request for payment (by pro-forma invoice or otherwise) will be issued by Creative Play on receipt of the Order. Payment of the Deposit must be made within 28 days of this request, or 10 Business Days prior to the commencement of Services, whichever is the earlier. 10.6 Where a Deposit is requested, Creative Play shall be under no obligation to take any further steps with regards the project until such time as the Deposit has been paid in cleared funds. 10.7 The Customer shall pay the price (or the balance of the price) for the Equipment and/or Services immediately upon Completion. 10.8 If the Customer identifies snagging, defects or post-completion issues, the Customer shall be entitled to retain a maximum of 10% of the price pending those matters be resolved. Once Completion has taken place, the Customer shall not have any entitlement to retain more than 10% of the price. That 10% shall be paid immediately upon the completion of the matters which gave rise to the withholding. 10.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT. 10.10 If the Customer fails to make any payment due to Creative Play under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2% per calendar month until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. 10.11 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Creative Play may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Creative Play to the Customer. 10.12 Where a special discount, payment or other terms have been agreed, these shall be strictly subject to the Customer’s compliance with these Conditions (including, but not limited to an obligation to pay), and such special terms shall cease and revert to these normal standard terms upon the Customer’s non-compliance.
11. Intellectual Property Rights
All intellectual property rights in or arising out of or in connection with the Equipment and/or Services, but excluding any Customer Documentation, shall be owned by Creative Play
12. Confidentiality and Data Processing
12.1 A party (‘Receiving Party’) 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 the Receiving Party by the other party (‘Disclosing Party’), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. 12.2 Creative Play will process any personal data in accordance with its Privacy Policy and Cookie Policy, copies of which are available on Creative Play’s website or on request.
13. Limitation Liability
13.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for: a) death or personal injury caused by negligence; b) fraud or fraudulent misrepresentation; and c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession). 13.2 Subject to clause 13.1: a) Creative Play 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) Creative Play’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 paid by the Customer for the Equipment and/or Services under the relevant Contract. 13.3 Given the express warranties provided by the Contract, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract. Creative Play gives no warranty as to the suitability of the Equipment and/ or design for the Customer’s particular requirement or objective.
14. Termination
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect if: a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 10 Business Days after receipt of notice in writing to do so; b) the other party 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), 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; c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy. 14.2 Without affecting any other right or remedy available to it, Creative Play may terminate the Contract with immediate effect: a) if the Customer fails to pay any amount due under the Contract on the due date for payment; or b) in accordance with clause 4.6. 14.3 Without limiting its other rights or remedies, Creative Play may suspend the supply of Services or all further deliveries of Equipment under the Contract or any other contract between the Customer and Creative Play if the Customer fails to pay any amount due under this Contract on the due date for payment. 14.4 On termination of the Contract for any reason: a) the Customer shall immediately pay to Creative Play all of the its outstanding unpaid invoices and interest and, in respect of Equipment and/or Services supplied but for which no invoice has yet been submitted, Creative Play shall submit an invoice, which shall be payable by the Customer immediately; b) Creative Play will be entitled to retain any Deposit; c) the accrued rights and remedies of the parties as at termination shall not be affected, 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; and d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15. Force Majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
16. General
16.1 The Contract is personal to the Customer and it shall not, without the prior written consent of Creative Play assign, subcontract, novate, transfer or deal in any other manner with all or any of its rights or obligations under the Contract. 16.2 Creative Play may at any time assign, subcontract, novate, transfer or deal in any other manner with all or any of its rights or obligations under the Contract. 16.3 Each right or remedy of the parties under the Contract is without prejudice to any other right or remedy of that party whether under the Contract or not. 16.4 The Contract and documents referred to in it constitute the whole agreement between the parties in relation to the Contract and supersede any previous arrangement, understanding or agreement between them relating to the subject matter. 16.5 Both parties acknowledge that, in entering into the Contract it does not rely on any statement, representation, assurance or warranty of any person (whether a party to the Contract or not) other than as expressly set out in the Contract. 16.6 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties. 16.7 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. 16.8 Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. 16.9 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 16.10 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it. 16.11 The formation, existence, construction, performance, validity and all aspects of the Contract and any and all matters relating to it shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
