Terms and conditions
THE CONDITIONS
1.1 Definitions:
Business Day: a day other than aSaturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of the Services by theSupplier, as set out in the Contract Details.
Conditions: these terms and conditions set out in clause 1(Interpretation) to clause 14(General) (inclusive).
Contract: the contract between the Customer and the Supplier for the supply of any Services and/or delivery of any Goods in accordance with the Contract Details and these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier.
Deliverables: all documents, products and materials developed by the Supplier or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts) and the Key Deliverables set out in the Contract Details.
Delivery Date: the date specified for delivery of an Order of Goods in accordance with clause 5.
Delivery Location: the address for delivery of the Goods, as set out in the ContractDetails.
Force Majeure Event: events, circumstances or causes beyond a party's reasonable control.
Goods: the goods (or any part of them), as set out in the Contract Details.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: an order for the Goods submitted by the Customer in accordance with clause 3.
Price: the price for the Goods, as set out in the Contract Details.
Services: the services, including without limitation any Deliverables, to be provided bythe Supplier pursuant to the Contract.
Services Start Date: the day on which the Supplier is to start provision of the Services, as set out in the Contract Details.
Supplier IPRs: all Intellectual Property Rights subsisting in the Deliverables excluding anyCustomer Materials incorporated in them.
1.2 Interpretation:
(a) A reference to legislation or a legislative provision isa reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes fax and email.
2.1 TheContract shall commence on the date when it has been signed by both parties and shall continue, unless terminated earlier in accordance with its terms, for the duration of the Term.
2.2 At the end of the Term, the Contract shall terminate automatically without notice unless the parties have before the end of the Term agreed otherwise in writing.
2.3 Where there is no fixed Term in the Contract, these Conditions shall continue until either party gives to the other party, not less than one month’s written notice to terminate at any time.
3.1 If the Customer has requested Goods, it shall place Orders in accordance with theContract Details.
3.2 Orders shall be given in writing. The Supplier may accept or decline Orders at its absolute discretion. The Supplier may, at its discretion, accept an amendment to an Order by the Customer.
3.3 TheSupplier shall assign an order number to each Order it accepts and notify the order number to the Customer. Each party shall use best efforts to use the relevant order number in all subsequent correspondence relating to the Order.
3.4 After confirming an Order, the Supplier shall as soon as practicable inform theCustomer of the Supplier's estimated delivery date for the Order.
3.5 TheCustomer is responsible for ensuring that Orders are complete and accurate. TheCustomer shall give the Supplier all necessary information that the Supplier reasonably requires to fulfil each Order.
4.1 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's materials are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
4.2 TheSupplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
5.1 TheSupplier shall ensure that each delivery of Goods is accompanied by a delivery note that shows the order number, the type and quantity of Goods and, if the relevant Order is being delivered by instalments, the outstanding balance ofGoods remaining to be delivered.
5.2 TheSupplier shall endeavour to deliver Goods to the Delivery Location on the relevant Delivery Date.
5.3 Delivery is completed on the completion of unloading of the Goods at the DeliveryLocation and risk in the Goods shall pass to the Customer at this time. Title to the Goods shall only pass to the Customer once the Supplier receives payment in full.
5.4 DeliveryDates are approximate only, and the time of delivery is not of the essence. TheSupplier shall not be liable for any delay in delivery of any Goods that is caused by:
(a) aForce Majeure Event; or
(b) theCustomer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5 If the Supplier fails to deliver Goods by the relevant Delivery Date, 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 Goods. The Supplier shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:
(a) aForce Majeure Event; or
(b) theCustomer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6 If 10 Business Days after the day on which the Supplier attempted to make delivery of Goods the Customer has not taken delivery of those Goods, the Supplier may resell or otherwise dispose of part or all of the Goods.
5.7 TheSupplier may deliver Orders by instalments, which shall be invoiced and paid for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.
5.8 Risk in Goods shall pass to the Customer on completion of unloading.
6.1 TheGoods will come with a manufacturer's guarantee. For details of the applicableterms and conditions, please refer to the manufacturer's guarantee providedwith the Goods.
6.2 TheSupplier warrants that on delivery, the Goods shall:
(a) subject to clause 4, conform in all material respects with their description; and
(b) befit for any purpose held out by us.
6.3 Subject to clause 6.2,if:
(a) theCustomer gives the Supplier notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.2;
(b) the Supplier is given a reasonable opportunity of examining the Goods; and
(c) the Supplier asks the Customer to return the Goods to the Supplier at the Customer’s cost, the Supplier will, at theSupplier’s option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.4 TheSupplier will not be liable for breach of the warranty set out in clause 6.2 if:
(a) theCustomer makes any further use of the Goods after giving notice to the Supplier under clause 6.3;
(b) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(c) theCustomer alters or repairs the Goods without the Supplier’s written consent;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) theGoods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.5 TheSupplier will only be liable to the Customer for the Goods' failure to comply with the warranty set out in clause 6.2to the extent set out in this clause 6.
6.6 Except as expressly stated in these Conditions, the Supplier does not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Conditions by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, the Supplier will not be responsible for ensuring that the Goods are suitable for the Customer’s purposes.
6.7 TheseConditions also apply to any repaired or replacement Goods supplied by theSupplier to the Customer.
7.1 TheSupplier shall supply the Services to the Customer from the Services Start Date in accordance with the Contract.
7.2 In supplying the Services, the Supplier shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the terms of this Contract;
(c) comply with all applicable laws, statutes, regulations from time to time in force provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract.
(d) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer's premises and have been communicated to the Supplier, provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(e) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if theCustomer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
8.1 TheCustomer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as required by the Supplier; and
(c) provide, in a timely manner, such information as the Supplier may require, and ensure that it is accurate and complete in all material respects.
8.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:
(a) not be liable for any costs, charges or losses sustained or incurred by theCustomer that arise directly or indirectly from such prevention or delay;
(b) be entitled to payment of the Charges despite any such prevention or delay; and
(c) be entitled to recover any additional costs, charges or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.
9.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and any successor legislation; and (ii) for so long as and to the extent that the law of the EU has legal effect in the UK, the General Data Protection Regulation((EU) 2016/679) and any other directly applicable EU regulation relating to privacy.
9.2 This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.
11.1 The price for Goods:
(a) shall be the price set out in the Order or, if no price is quoted, the price set outin the Supplier's published price list as at the date of the order; and
(b) shall be exclusive of all costs and charges of packaging, insurance, transport of theGoods, which shall be invoiced to the Customer.
11.2 Inconsideration for the provision of the Services, the Customer shall pay theSupplier the Charges in accordance with this clause 11.
11.3 All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable topay to the Supplier at the prevailing rate (if applicable), subject to receiptof a valid VAT invoice.
11.4 In respect of the Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of the Servies, the Supplier shall submit invoices for the Charges to the Customer at the intervals specified in the Contract Details. Each invoice shall include all reasonable supporting information required by the Customer.
11.5 Unless the Order states otherwise, the Customer shall pay each invoice due and submitted to it by the Supplier, within 30 days of receipt, to a bank account nominated in writing by the Supplier.
11.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier's remedies under clause 13 (Termination):
(a) theCustomer 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%.
(b) theSupplier may suspend all Services until payment has been made in full.
11.7 All amounts due under the Contract from the Customer to the Supplier shall be paid by in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12.1 TheSupplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £500,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange, and the Customer is responsible for making its own arrangements forthe insurance of any excess loss.
12.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
12.3 Nothing in this clause 12shall limit the Customer's payment obligations under the Contract.
12.4 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.5 Subject to clause 12.2 (No limitation in respect of deliberate default), clause 12.3(No limitation on customer's payment obligations) and clause 12.4(Liabilities which cannot legally be limited) the Supplier's total liability to theCustomer for all loss or damage shall not exceed the total charges in thecontract year in which the breach occurred.
12.6 The following type of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
12.7 The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.1 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the 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 reasonable opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
13.3 On termination of the Contract for whatever reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect; and
(c) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.1 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 a Force Majeure Event.
14.2 Assignment and other dealings.
(a) TheCustomer shall not assign, transfer, charge, subcontract, declare a trust overor deal in any other manner with any or all of its rights and obligations underthe Contract without the Supplier's prior written consent.
(b) TheSupplier may at any time assign, transfer, charge, subcontract, declare a trustover or deal in any other manner with any or all of its rights under theContract.
14.3 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clientsor suppliers of the other party except as permitted by clause 14.3.
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. 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 14.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use any other party's confidential information for any purposeother than to perform its obligations under the Contract.
14.4 Entire agreement.
(a) TheContract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract 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 theContract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
14.5 Variation.
No variation of the Contract shall be effective unless it is in writing and signedby the parties (or their authorised representatives).
14.6 Waiver.
(a) A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy
(b) A failure or delay by a party to exercise any right or remedy provided under theContract or by law shall not constitute a waiver of that or any other right orremedy, nor shall it prevent or restrict any further exercise of that or anyother right or remedy. No single or partial exercise of any right or remedyprovided under the Contract or by law shall prevent or restrict the furtherexercise of that or any other right or remedy.
14.7 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegalor unenforceable, it shall be deemed modified to the minimum extent necessaryto make it valid, legal and enforceable. If such modification is not possible,the relevant provision or part-provision shall be deemed deleted. Anymodification to or deletion of a provision or part-provision under this clause 14.7shall not affect the validity and enforceability of the rest of the Contract.
14.8 Notices.
(a) A nynotice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) 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); or
(ii) sent by email to the address specified by a party to the other party.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) 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; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 14.8(b)
(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 14.8 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.
14.9 Third party rights. Unless it expressly states otherwise,]the Contract does not give rise to any rights under the Contracts (Rights ofThird Parties) Act 1999 to enforce any term of the Contract.
14.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.
14.11 Jurisdiction.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 theContract or its subject matter or formation.