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These are the terms and conditions on which we purchase metals and related items (for example investment gold such as bullion or gold coins, non-bullion products, or jewellery) from businesses. You are a business Seller if you are buying products wholly or mainly for use in connection with your trade, business, craft or profession, even if you are an individual.
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Agreement to these terms – If you submit an Offer (see definition below), to us online, you will be asked to tick a box confirming you have read and agree to these terms and conditions. By ticking this box you are entering into a legally binding contract with us based on those terms.
If you do not agree to these terms and conditions, you must not tick the box and should not submit an Offer. You may exit the checkout process at any time.
If you sell products to us in-store, your sale is subject to these terms and conditions. By completing an in-store purchase, you agree to be bound by these terms which are available for you to read on our website. If you do not agree to these terms, you should not proceed with the sale of your goods. - Risk Notice. We purchase Goods based on global market prices which are outside our control and change frequently. Historical performance is not a reliable indicator of future prices. THE VALUE OF GOODS CAN GO UP AND DOWN AND A SELLER COULD RECEIVE PAYMENT FOR THEIR GOODS WHICH IS LESS THAN WHAT THE SELLER ORIGINALLY PAID FOR IT.
- Why you should read them. Please read these terms carefully before you submit your Offer to us. These terms tell you who we are, how we purchase goods from you and how we may change or end the contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms, please contact us to discuss.
- Where to find information about us and our products. You can find everything you need to know about us from our sales staff before you order. We also confirm the key information to you in writing before you order.
The following definitions and rules of interpretation in this clause apply in this agreement.
1.1 Definitions:
- ADR notice: has the meaning given in clause 19.1(c).
- Affected Party: has the meaning given in clause 16.2.
- Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
- Business Hours: the period from 9.00 am to 6.00 pm on any Business Day.
- Commencement Date: the date Gold have accepted the Seller's Offer provided that all Preconditions in clause 5.5 have been satisfied.
- Confidential Information: any confidential information concerning the business, affairs, Sellers, clients or suppliers of the other party or of any member of its Group, including information relating to a party's operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and Sellers.
- Delivered: completion of delivery of Goods when the Selling Your Goods Requirements have been met and Gold has confirmed receipt and completed inspection and verification of the Goods in accordance with clause 5.5.
- Delivery Date: the date specified for delivery of Goods specified in a Quote or otherwise notified under clause 5.7.
- Delivery Location: Gold's premises at 215 The Broadway, Southall, Middlesex, UB1 1NB or such other address as Gold may notify to the Seller.
- Dispute: has the meaning given in clause 19.1.
- Force Majeure Event: has the meaning given in clause 16.1.
- GBL International Ltd: a company incorporated and registered in England and Wales with company number 08101794 whose registered office is at 215 The Broadway, Southall, Middlesex, UB1 1NB, VAT number: 449836542, telephone number: 02035001111, and email support@goldbank.co.uk ("Gold", "us", "we", or "our").
- Goods: means the goods the Seller offers to sell to Gold including bullion, non-bullion products or jewellery and any associated documentation, certificates or supporting material required under clause 5.5.
- Group: in relation to a company, that company, any subsidiary or holding company from time to time.
- 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, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
- Losses: means all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
- Mandatory Policies: Gold's business policies listed in Schedule 1, as amended by notification to the Seller from time to time.
- month: a calendar month.
- Offer: an offer made by the Seller to sell Goods to Gold made following receipt of Gold's Quote and subject to Gold's right to verify the Goods, correct errors and revise the Quote in accordance with clause 5.1 and clause 5.5.
- Preconditions: means the conditions that must be satisfied before Gold will accept an Offer as more fully set out in clause 5.5.
- Prices: the prices of the Goods as determined in accordance with clause 8.1 and Price means the price of an individual Good as determined in accordance with that clause.
- Quote: the written or electronic quotation provided by Gold based on the Goods description and market prices.
- Quote Number: the reference number to be applied to an Offer by Gold in accordance with clause 5.8.
- Seller: means the person, firm or company offering to sell Goods to Gold ("you", or "your").
- Seller Delivery Address: means the delivery address specified by the Seller in the Offer, or such other address as the parties may agree in writing.
- Selling Your Goods Requirements: has the meaning ascribed to it in clause 5.5(c).
- Specification: the specification of the Goods as set out by the Seller in an Offer.
- Term: the term of the agreement, as determined in accordance with clause 2.
- VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
- year: a period of 12 consecutive months from 1 January to the following 31 December.
- 1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
- 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- 1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the Schedules.
- 1.5 A reference to a company includes any company, corporation or other body corporate, wherever and however incorporated or established.
- 1.6 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. For the purposes of determining whether a limited liability partnership is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be interpreted so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
- 1.7 Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.
- 1.8 Unless the context otherwise requires, a reference to one gender includes a reference to the other genders.
- 1.9 This agreement shall be binding on, and enure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party include that party's personal representatives, successors and permitted assigns.
- 1.10 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that legislation or legislative provision.
- 1.11 A reference to writing or written excludes fax but not email.
- 1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
- 1.13 References to a document in agreed form are to that document in the form agreed by the parties and initialled by them or on their behalf for identification.
- 1.14 A reference to this agreement or to any other agreement or document is a reference to this agreement or such other agreement or document, in each case as varied from time to time.
- 1.15 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
- 1.16 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.
This agreement commences on the Commencement Date and applies to each Offer. Subject to clause 15, the agreement will automatically end once both parties have fulfilled their obligations in respect of that Offer, unless terminated earlier in accordance with clause 13 ("Term") or any other clause of this agreement which provides a termination right.
3.1 Gold is not authorised by the Financial Conduct Authority and cannot provide any form of investment advice, including advice comparing precious metals with regulated investments or advice on potential tax implications. The Seller must rely on its own financial, tax and accounting advisers in relation to any Goods purchased by Gold.
4.1 During the Term, the Seller offers to sell and Gold may agree to purchase such quantities of Goods as the Seller may Offer under clause 5 in accordance with the terms and conditions of this agreement.
4.2 The Seller warrants that it meets all Selling Your Goods Requirements and warrants that all descriptions, statements and information provided about the Goods are true, complete, accurate and not misleading. The Seller is liable to Gold for all Losses for breach of this warranty by the Seller.
4.3 The Seller must complete all acts, deliver all relevant documents and take all steps necessary to transfer full legal ownership of the Goods to Gold. Any breach of this clause is considered a material breach and Gold may terminate the agreement and claim Losses from the Seller.
5.1 The Seller shall make an Offer to Gold.
5.2 Each Offer shall be deemed to be a separate offer by the Seller to sell Goods on the terms of this agreement, which Gold shall be free to accept or decline at its absolute discretion. Should Gold receive an Offer, it shall prepare a Quote (which may be amended by Gold at any time before or after issuing such Quote and where such Quote will remain valid as set out in the Quote) and submit same to the Seller. The Seller shall notify Gold if the Quote meets the requirements of the Seller.
5.3 Each Offer is made on the basis that Gold will verify the description, quantity, quality and authenticity of the Goods and may request identification, ownership evidence or enhanced due diligence information before accepting any Offer.
5.4 An Offer is accepted when Gold confirms acceptance of the Goods following the Seller's notification to Gold as set out in clause 5.2 and once all Preconditions in clause 5.5 have been satisfied.
5.5 Preconditions – Gold will only accept an Offer once all of the following Preconditions have been satisfied:
- (a) Gold has received ID from the Seller when requested, and such ID is verifiable and has been verified by Gold; and
- (b) If information about the Seller previously held by Gold differs from information provided in an Offer, Gold in its sole discretion may request updated ID and such ID is verifiable and has been verified by Gold.
- (c) The Seller must comply with the Selling Your Goods Requirements and Gold have received full details of the Seller's payment account and a full description of the Goods. The Selling Your Goods Requirements are as follows:
- (i) the Seller must be the sole and absolute owner of the Goods;
- (ii) the description of the Goods must be true, complete, accurate and not misleading and is subject to being verified by Gold when the Goods are received by Gold;
- (iii) the Seller must deliver the Goods safely to Gold, pay for the Seller's travel or delivery costs, bear the risk as set out in clause (c), and deliver all required certificates and documents relating to the Goods or required by Gold (as notified by Gold to the Seller);
- (iv) the Seller must provide any additional information, documents or evidence reasonably required by Gold to complete identity verification, ownership checks and enhanced due diligence.
- (d) No default by the Seller or problem has arisen under or in connection with this agreement, determined in its sole discretion by Gold; and
- (e) There are no reasons for Gold not to accept the Offer. If Gold is unable to accept the Offer, the Seller will be notified and Gold will not be liable for payment for the Goods. This may include circumstances where the Selling Your Goods Requirements have not been met, where unexpected limits in resources arise, where a credit reference does not meet the minimum requirements, where a pricing or description error is identified, or where a delivery deadline specified by the Seller cannot be met.
5.6 The Seller shall:
- (a) give each Offer in writing or, if given orally, shall confirm it in writing within two Business Days; and
- (b) specify in each Offer the type and quantity of Goods to be sold and a full and accurate description of the Goods, together with any additional information reasonably required by Gold to assess the Offer in accordance with this agreement.
5.7 Gold shall notify the Seller of the Delivery Date in the Quote for the Goods to be delivered to the Delivery Location and may update the Delivery Date or delivery instructions where reasonably required in accordance with this agreement.
5.8 Gold shall assign a Quote Number to each Quote sent to the Seller and notify such Quote Numbers to the Seller. Each party shall use the relevant Quote Number in all subsequent correspondence relating to the Offer.
5.9 Goods which are bullion:
- (a) The Seller may not at any time after Gold have accepted an Offer, amend or cancel an Offer due to the fluctuating prices of the Goods if the Goods are bullion. If the Seller amends or cancels an Offer after Gold have accepted it, and if Gold accepts such cancellation or amendment, a cancellation fee equal to 10% of the value of the Quote and any applicable market loss fee (reflecting the adverse movement in underlying Goods prices) shall apply unless the amendment or cancellation results from Gold's failure to comply with its obligations under this agreement. Gold has the sole and absolute discretion to accept an amendment or cancellation of an Offer which has been accepted and may refuse for any reason including but not limited to circumstances where Gold have already sold, transferred or otherwise disposed of the Goods and cannot return them to the Seller.
- (b) If the Seller cancels or amends an Offer which has already been accepted, and Gold accepts such amendment or cancellation, then upon Gold's receipt of the (i) cancellation fee, and/or (ii) market loss fee (as applicable), and (iii) refund of the price paid by Gold, then Gold will return the Goods to the Seller within 10 Business Days from receipt of (i), (ii) and (iii) above as applicable.
- (c) A delivery of Goods to Gold under clause (iii) is deemed to be Delivered when all the Selling Your Goods Requirements have been met.
5.10 Click & Drop
- (a) Where Gold makes a Click & Drop service available, the Seller may choose Click & Drop as the method for delivering the Goods to Gold when submitting an Offer.
- (b) The Seller shall, when choosing Click & Drop, select a drop off date and time in accordance with the process notified by Gold. Gold will confirm the agreed drop off details once the Offer has been submitted.
- (c) The Seller must deliver the Goods to the agreed drop off address on the selected date and time, or as soon as reasonably possible thereafter and in any event, within 5 Business Days of submitting the Offer.
- (d) The Seller must deliver the Goods in person and bring original photographic identification (driver's licence or passport), proof of address and order confirmation reasonably required by Gold to verify the Seller's identity or the Goods being delivered.
- (e) Goods remain the Seller's responsibility and at the Seller's risk until Gold has confirmed receipt of the Goods and completed any required inspection, verification or due diligence checks.
- (f) Gold may refuse to accept delivery of the Goods where:
- (i) Gold has reasonable grounds for suspicion;
- (ii) Gold has safety or security concerns; or
- (iii) for any other reasonable operational or lawful reason.
- (g) If the Seller does not deliver the Goods on the arranged date or within 5 Business Days of submitting the Offer, Gold may:
- (i) contact the Seller to arrange a new drop off appointment;
- (ii) if the Seller cannot be contacted or still fails to deliver, cancel the Offer; and
- (iii) charge the Seller any reasonable costs incurred by Gold as a result of the failed delivery or delayed delivery.
- (h) If Gold cancels the Offer under clause 5.10(g), the Seller shall be liable for any fees, charges or adverse price movements applicable under clause 5.9.
6.1 Gold may reject any Goods Delivered to it that do not comply with the Selling Your Goods Requirements, provided that it gives to the Seller reasons for the notice of rejection, including but not limited to:
- (a)
- (i) in the case of a defect that is apparent on normal visual inspection, within ten Business Days of being Delivered;
- (ii) in the case of a latent defect, within a reasonable time of the latent defect having become apparent.
6.2 If Gold gives notice of rejection to the Seller, Gold will return the Goods to the Seller within 10 Business Days and have no further liability to the Seller. If the Seller has already received payment for the Goods, the Seller shall refund the price paid by Gold prior to Gold returning the Goods to the Seller.
7.1 Risk in Goods shall pass to Gold only once the Goods are Delivered and Gold has accepted the Offer in accordance with clause 5.4.
7.2 Title to Goods shall pass to Gold when (i) Gold deems the Goods to be Delivered, and (ii) Gold has made payment in full (in cash or cleared funds) in accordance with clause 9.
7.3 Until title to Goods has passed to Gold, the Seller shall:
- (a) store and package those Goods in a safe and secure manner suitable for transport and inspection;
- (b) not remove, deface or obscure any identifying mark or packaging on or relating to those Goods;
- (c) bear all risk of loss, theft or damage to the Goods until the Goods have been Delivered and accepted by Gold under clause 5.4.
8.1 The Prices for the Goods shall be set out in the Quote and may be amended by Gold in accordance with clause 5.3 where the Goods received differ from the Seller's description.
8.2 The Prices are inclusive or exclusive of amounts in respect of VAT as specified in the Quote. Gold shall, on receipt of a valid VAT invoice from the Seller, pay the Seller any additional amounts in respect of VAT as are chargeable on a supply of Goods.
8.3 All disputes concerning the Prices shall be resolved in accordance with clause 19.
9.1 Payments to the Seller are made within 7 Business Days of the Goods being Delivered to Gold and the Offer being accepted in accordance with clause 5.3 and subject to Gold receiving bank details nominated by the Seller in writing.
9.2 If the Seller fails to make a payment due to Gold under this agreement by the due date, then, without limiting Gold's remedies under clause 13.1, the Seller shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.3 If Gold disputes any invoice or other statement of monies due, Gold shall notify the Seller in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. Gold shall provide reasonable evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the parties have not resolved the dispute within 10 days of Gold giving notice to the Seller, the dispute shall be referred to dispute resolution in accordance with clause 19. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date.
9.4 The Seller shall pay all amounts due under this agreement in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.5 If the Seller creates an online account with Gold, the Seller shall:
- (a) notify Gold immediately regarding any change in the information provided when the account was created and ensure that all such information remains accurate and complete;
- (b) provide further ID when requested by Gold and any additional information reasonably required by Gold to verify the Seller's identity or to process an Offer in accordance with these terms.
9.6 Gold may suspend, refuse or block access to a Seller's online account and may terminate this agreement or an Order for any breach of clause 9.5 by the Seller.
10.1 In performing its obligations under the agreement, the Seller shall and shall procure that each member of its Group comply with:
- (a) all applicable laws, statutes, regulations and codes from time to time in force; and
- (b) the Mandatory Policies.
10.2 Gold may terminate the agreement with immediate effect by giving written notice to the Seller if the Seller commits a breach of clause 10.1.
IMPORTANT
11.1 The following definitions apply in this clause 11:
- (a) liability: (i) every kind of liability arising under or in connection with this agreement including liability in contract, tort (including negligence) or otherwise; and (ii) arising out of any use made or resale of the Goods by the Seller, or of any product incorporating any of the Goods; and
- (b) default: any act or omission resulting in one party incurring liability to the other.
11.2 Nothing in this agreement limits or excludes:
- (a) liability for deliberate or wilful default;
- (b) liability for death or personal injury caused by negligence to the extent preserved by section 2(1) of the Unfair Contract Terms Act 1977;
- (c) liability for fraud or fraudulent misrepresentation;
- (d) liability for breach of the terms implied by section 12 of the Sale of Goods Act 1979;
- (e) liability for breach of section 2 of the Consumer Protection Act 1987; or
- (f) any liability that cannot legally be limited; and
- (g) the Seller's obligations regarding title and accuracy of description.
11.3 Subject to clause 11.2, Gold's total liability to the Seller shall not exceed in the aggregate the price stated in the accepted Offer or £1,000, whichever is the higher.
11.4 Subject to clause 11.2, Gold's total liability to the Seller, if a price is not ascertainable, shall not exceed £100.
11.5 The caps on Gold's liabilities shall be reduced by:
- (a) payment of an uncapped liability; and
- (b) amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.
11.6 Subject to clause 11.2, Gold shall have no liability for:
- (a) loss of profits (including loss of anticipated savings);
- (b) loss of sales or business;
- (c) loss of agreements or contracts;
- (d) loss of use or corruption of software, data or information;
- (e) loss of or damage to goodwill; or
- (f) indirect or consequential loss.
11.7 Unless a party notifies the other party that it intends to make a claim within the notice period, the other party shall have no liability for that claim. The notice period shall start on the day on which the party wishing to make a claim became, or ought reasonably to have become, aware of its having grounds to make a claim and shall expire 3 (three) months from that date. The notice must be in writing and must identify the grounds for the claim in reasonable detail.
12.1 Each party undertakes that it shall not at any time during this agreement and for a period of two years after termination or expiry of this agreement, disclose to any person any Confidential Information, except as permitted by clause 12.2.
12.2 Each party may disclose the other party's Confidential Information:
- (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
- (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither party may use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
12.4 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
13.1 Without affecting any other right or remedy available to it, Gold may terminate this agreement with immediate effect by giving written notice to the Seller if:
- (a) the Seller fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
- (b) the Seller fails to, within a reasonable time, provide information requested by Gold, to enable Gold to purchase the Goods;
- (c) the Seller fails, within a reasonable time, to satisfy the Selling Your Goods Requirements;
- (d) the Seller commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
- (e) the Seller repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
- (f) the Seller suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
- (g) the Seller commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Seller with one or more other companies or the solvent reconstruction of that other party;
- (h) the Seller applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- (i) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Seller other than for the sole purpose of a scheme for a solvent amalgamation of the Seller with one or more other companies or the solvent reconstruction of the Seller;
- (j) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the Seller;
- (k) the holder of a qualifying floating charge over the assets of the Seller has become entitled to appoint or has appointed an administrative receiver;
- (l) a person becomes entitled to appoint a receiver over all or any of the assets of the Seller or a receiver is appointed over all or any of the assets of the Seller;
- (m) a creditor or encumbrancer of the Seller attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Seller's assets and such attachment or process is not discharged within 14 days;
- (n) any event occurs, or proceeding is taken, with respect to the Seller in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 13.1(f) to 13.1(m) (inclusive);
- (o) the Seller suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
- (p) the Seller's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
13.2 For the purposes of clause 13.1(d), a material breach means a breach that has a serious effect on the benefit the terminating party would otherwise derive from this agreement during the Term.
13.3 Gold may suspend the processing of any Offer or the purchase of any Goods where reasonably necessary to:
- (a) deal with technical problems or make technical changes;
- (b) comply with changes in applicable laws or regulatory requirements;
- (c) complete identification, verification or enhanced due diligence checks;
- (d) investigate discrepancies in the description, quantity or authenticity of the Goods; or
- (e) address any safety, security or compliance concerns.
13.4 Gold shall notify the Seller of any suspension and its expected duration. If a suspension continues for more than 20 Business Days, Gold may terminate the affected Offer or this agreement by written notice to the Seller.
14.1 On termination of this agreement:
- (a) the Seller shall immediately pay to Gold all of Gold's unpaid invoices (if applicable) and interest and, where no invoice has been submitted, Gold may submit an invoice which shall be payable immediately on receipt; and
- (b) each party shall promptly:
- (i) return to the other party all equipment, materials and property belonging to and supplied by that other party in connection with this agreement;
- (ii) return to the other party all documents and materials (and any copies) containing the other party's Confidential Information and, to the extent possible, erase any such Confidential Information from its computer systems;
- (c) the Seller shall be liable for any adverse movement in the underlying price of the Goods, measured between the spot price at Offer acceptance and the spot price at termination acceptance; and
- (d) the Seller shall pay the cancellation and market-loss fee if applicable as set out in clause 5.9; and
- (e) the Seller shall immediately pay for additional services including attempted delivery or return of the Goods by Gold.
14.2 Gold may request the Seller to certify in writing that they have complied with their obligations under clause 14.1.
15.1 On termination or expiry of this agreement the following clauses shall continue in force:
- (a) clause 11 (Limitation of liability);
- (b) clause 12 (Confidentiality);
- (c) clause 14 (Obligations on termination);
- (d) clause 15 (Survival);
- (e) clause 19 (Multi-tiered dispute resolution procedure);
- (f) clause 26 (Governing law); and
- (g) clause 27 (Jurisdiction),
and any provisions of clauses 5.5 and 5.9 to the extent that they relate to rights, obligations or liabilities accrued before termination.
15.2 Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages for any breach of the agreement that existed at or before the date of termination or expiry.
16.1 Force Majeure Event means any circumstance not within a party'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 clause or those of its subcontractors or companies in the same Group as that party);
- (h) non-performance by suppliers or subcontractors (other than by companies in the same Group as the party seeking to rely on this clause); and
- (i) interruption or failure of utility service.
16.2 Subject to clause 16.4, a party (Affected Party) shall not be liable for any failure or delay in performing any of its obligations under this agreement for so long as, and to the extent that, its performance is directly prevented, hindered or delayed by a Force Majeure Event.
16.3 For so long as the Affected Party's liability in relation to any of its obligations is suspended under clause 16.2, the other party shall not be liable for any failure or delay in performing its corresponding obligations.
16.4 Clause 16.2 will only apply if the Affected Party:
- (a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 10 days from its start, notifies the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on the Affected Party's ability to perform any of its obligations under this agreement;
- (b) took reasonable precautions to prevent or minimise the Force Majeure Event including implementing and complying with an effective business continuity plan, except where compliance with the business continuity plan is itself affected by the Force Majeure Event; and
- (c) uses all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
16.5 The Affected Party shall keep the other party informed of its endeavours under clause 16.4 and their outcome promptly on request.
16.6 If the Affected Party has not resumed full performance of any obligations suspended under clause 16.2 within 60 days after giving notice of the start of the Force Majeure Event, the other party may terminate this agreement by giving not less than 7 days' written notice to the Affected Party.
17.1 The Seller shall not assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of Gold.
17.2 Gold may assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the Seller.
18.1 If any provision or part-provision of this agreement 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 this agreement.
18.2 If any provision or part-provision of this agreement is deemed deleted under clause 18.1, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.1 If a dispute arises out of or in connection with this agreement or its performance, validity or enforceability (Dispute) then except as expressly provided in this agreement, the parties shall follow the procedure set out in this clause 19:
- (a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute notice), together with relevant supporting documents. On service of the Dispute notice, the sales manager of Gold and the purchasing manager of the Seller shall attempt in good faith to resolve the Dispute;
- (b) if the sales manager of Gold and the purchasing manager of the Seller are for any reason unable to resolve the Dispute within 5 working days of service of the Dispute notice, the Dispute shall be referred to a director of Gold and a director of the Seller who shall attempt in good faith to resolve it;
- (c) if the director of Gold and the director of the Seller are for any reason unable to resolve the Dispute within 5 working days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 20 working days of service of the Dispute notice, the mediator will be nominated by CEDR. To initiate the mediation, a party must give notice in writing (ADR notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the ADR notice should be sent to CEDR;
- (d) unless otherwise agreed between the parties, the mediation will start not later than 10 working days after the date of the ADR notice.
19.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings.
19.3 If for any reason the Dispute is not resolved within 20 working days of commencement of the mediation, the Dispute shall be referred to and finally resolved by the courts of England and Wales in accordance with clause 27 (Jurisdiction).
At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
22.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
22.3 A party that waives a right or remedy provided under this agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
23.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by 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).
23.2 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 on the second Business Day after posting.
23.3 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.
23.4 A notice given under or in connection with this agreement is not valid if sent by email.
24.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
24.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
24.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
24.4 Nothing in this clause 24 shall limit or exclude any liability for fraudulent misrepresentation.
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
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