1.1.1 Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
1.1.2 Commencement Date: has the meaning given in clause 2.3.
1.1.3 Conditions: these terms and conditions as amended from time to time in accordance with clause 17.8.
1.1.4 Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
1.1.5 Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
1.1.6 Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
1.1.7 Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
1.1.8 Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
1.1.9 Delivery Location: has the meaning given in clause 4.2.
1.1.10 Force Majeure Event: has the meaning given to it in clause 16.
1.1.11 GDPR: General Data Protection Regulation ((EU) 2016/679).
1.1.12 Goods: the goods (or any part of them) set out in the Order.
1.1.13 Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
1.1.14 Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks 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.
1.1.15 Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form.
1.1.16 Quotation the form to be completed by the Supplier which will set out the key variable details of the Contract including, as applicable, the Goods and/or Services, the Goods Specification and/or Services Specification, the Delivery Location and the price of the Goods and/or the charges for the Services.
1.1.17 Service Hours: the hours during which the Goods are in operation.
1.1.18 Services: the services, including the Deliverables, assembly, installation, erection, repairs and similar services supplied by the Supplier to the Customer asset out in the Service Specification.
1.1.19 Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
1.1.20 Supplier: Alatas UK Limited registered in England and Wales with company number 02319388 and registered office at Unit B Olympic Park, Low Moor, Bradford, England, BD12 0LP. 1.1.21 Supplier Materials: has the meaning given in clause 8.1.8. 1.2 Interpretation: 1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 1.2.2 A reference to a party includes its successors and permitted assigns. 1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. 1.2.4 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. 1.2.5 A reference to writing or written includes fax and email.
2. BASIS OF CONTRACT
2.1 Following an enquiry from the Customer for Goods and/or Services, the Supplier will provide the Customer with a Quotation.
2.2 If the Customer wishes to purchase the Goods and/or Services from the Supplier on the terms set out in the Quotation, the Customer shall place an Order for those Goods and/or Services. The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when the Supplier issues written confirmation and acceptance of the Order to the Customer, at which point and on which date the Contract shall come into existence (Commencement Date). The Supplier is under no obligation to accept any Order issued by the Customer.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any Quotation given by the Supplier shall not constitute an offer and is only valid for a period of twenty (20) Business Days from its date of issue unless otherwise stated in the Quotation.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Quotation as modified by any applicable Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Issue Date.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 Unless otherwise agreed between the parties in the Quotation, the Supplier shall deliver the Goods to the address set out in the Quotation (Delivery Location) and the Customer shall collect the Goods from the Delivery Location on the day that the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be Ex Works Delivery Location (Incoterms 2010) and completed on the completion of loading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Notwithstanding the provisions of clause 16, the Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event (in which case the time for delivery shall be extended accordingly) or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the lesser of 10% above the value of the goods not delivered and 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 the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to take delivery of the Goods on the day the Supplier notifies the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been completed on the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten (10) Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.8 If the Supplier delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. QUALITY OF GOODS
5.1 Where it is reasonably able to do so, the Supplier shall pass on to the Customer the manufacturer’s warranty in respect of the Goods and notify the Customer in writing of the terms of that warranty.
5.2 In the event that the Supplier is unable to provide a manufacturer’s warranty in respect of the Goods as described in clause 5.1 and unless otherwise stated in the Quotation, the Supplier warrants that on delivery, and for a period of three (3) months from the date of delivery or after the effluxion of two hundred and fifty (250) Service Hours, whichever occurs first (Warranty Period), the Goods shall: 5.2.1 conform in all material respects with their description and any applicable Goods Specification; and 5.2.2 be free from material defects in design, material and workmanship.
5.3 Subject to clause 5.4, the Supplier shall, at its option, repair, replace or issue a refund in respect of the defective Goods, if:
5.3.1 the Customer gives notice in writing during the Warranty Period within forty eight (48) hours of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.2;
5.3.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.3.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost.
5.4 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.2 if:
5.4.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.3;
5.4.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.4.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
5.4.4 the Customer, in attempting to alter or repair such Goods, has not: (a) exclusively used the Supplier’s spare parts; (b) obtained the written consent of the Supplier to use any additional parts in connection with the Goods; (c) used personnel authorised by the Supplier to carry out such alterations or repairs;
5.4.5 the defect arises as a result of or in relation to the use of the wrong type of fuel or lubricants in connection with the Goods;
5.4.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
5.4.7 the defect arises as a result of the act or omissions of third parties;
5.4.8 the defect arises as a result of improper repair of the Goods by anyone other than the Supplier or a third party approved by the Supplier in writing;
5.4.9 the defect relates to non-compliance with any laws or regulations or other Customer requirements which have not been included in the Goods Specification; or
5.4.10 the Goods differ from their description or the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.2.
5.6 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums;
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4 and;
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 If before title to the Goods passes to the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
6.4.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
6.4.2 if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. SUPPLY OF SERVICES
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order, Quotation and (where applicable) any information it provides in the Service Specification and the Goods Specification are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to the Services including but not limited to the provision, at the Customer’s cost, of personnel, equipment, tools, materials and support as reasonably required by the Supplier in order to perform the Services;
8.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.5 prepare the Customer’s premises for the supply of the Services including but not limited to the installation of on-site infrastructure together with the implementation of and compliance with appropriate security measures as reasonably required in order to perform the Services and protect the personnel and equipment used to perform such Services;
8.1.6 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;
8.1.7 comply with all applicable laws, including health and safety laws;
8.1.8 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
8.1.9 comply with any additional obligations as set out in the Service Specification and the Goods Specification.
8.2 If the Supplier’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):
8.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
8.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. CHARGES AND PAYMENT
9.1 The price for Goods:
9.1.1 shall be the price set out in the Quotation; and
9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
9.2 The charges for Services shall be calculated on a time and materials basis:
9.2.1 the charges and the Supplier’s daily fee rates shall be calculated in accordance with the Quotation;
9.2.2 the Supplier shall be entitled to charge an overtime rate which will be set out in the Quotation for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in the Quotation; and
9.2.3 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, waiting time at the Customer’s premises, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
9.3 The Supplier reserves the right to:
9.3.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date and the first such increase shall take effect on the first anniversary of the Commencement Date;
9.3.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after the Commencement Date. In respect of Services, the Supplier shall invoice the Customer as set out in the Quotation or, if no invoicing terms are specified in the Quotation, weekly in arrears.
9.5 The Customer shall pay each invoice submitted by the Supplier:
9.5.1 as set out in the Quotation or, if no payment terms are specified in the Quotation, within thirty (30) days of the date of the invoice; and
9.5.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 14 (Termination), the Customer 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 9.7 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%.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2 To the extent any Deliverables are provided by the Supplier to the Customer as part of the Services, the Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its ordinary course of business.
10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free nontransferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
11. DATA PROTECTION AND DATA PROCESSING
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
11.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
11.3 Without prejudice to the generality of clause 11.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
11.4 Without prejudice to the generality of clause 11.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
11.4.1 process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;
11.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
11.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
11.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(a) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
11.4.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
11.4.6 notify the Customer without undue delay on becoming aware of a Personal Data breach;
11.4.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
11.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 11. 11.5 The Customer shall not unreasonably withhold or delay its consent to the Supplier appointing a third party as a third-party processor of Personal Data under the Contract. The Supplier confirms that it will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11. 11.6 Either party may, at any time on not less than thirty (30) days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12.1 Each party undertakes that it shall not at any time during the Contract, and for a period of three (3) years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
12.2.1 to its employees, officers, representatives, 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, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13. LIMITATION OF LIABILITY
13.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
13.1.1 death or personal injury caused by negligence;
13.1.2 fraud or fraudulent misrepresentation; and
13.1.3 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, the Supplier’s total liability to the Customer in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall not exceed one hundred per cent (100%) of the total charges payable by the Customer to the Supplier under the Contract.
13.3 This clause 13.3 sets out specific heads of excluded loss and exceptions from them:
13.3.1 Subject to clause 13.1, the types of loss listed in clause 13.3.2 are wholly excluded by the parties.
13.3.2 The following types 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.
(g) Indirect or consequential loss.
13.4 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
13.5 This clause 13 shall survive termination of the Contract.
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within fourteen (14) days after receipt of notice in writing to do so;
14.1.2 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
14.1.3 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
14.1.4 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, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
14.2.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
14.2.2 there is a change of Control of the Customer.
14.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15. CONSEQUENCES OF TERMINATION
15.1 On termination of the Contract:
15.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
15.1.2 the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
16. FORCE MAJEURE
16.1 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 (“Force Majeure Event”).
16.2 If the Force Majeure Event prevents, hinders or delays the Supplier from delivering the Goods or performing the Services for a continuous period of more than twelve (12) weeks, the Customer may terminate the Contract by giving two (2) weeks’ written notice to the Affected Party, provided that the Force Majeure Event is still preventing the Supplier from delivering the Goods or performing the Services at the expiry of the two (2) week notice period.
17.1 Assignment and other dealings. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
17.2 Notices. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
17.2.1 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
17.2.2 sent by fax to its main fax number or sent by email to the address specified in the Quotation. Any notice or communication shall be deemed to have been received:
17.2.3 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
17.2.4 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 at the time recorded by the delivery service; and
17.2.5 if sent by fax or 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 17.2.5, 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. 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.
17.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
17.4 Waiver. 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. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.6 Entire agreement. The Contract 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. 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
17.7 Third parties rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9 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.
17.10 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 the Contract or its subject matter or formation.
17.11 Arbitration. Notwithstanding clauses 17.9 and 17.10, where the parties are situated in different jurisdictions, any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules, which are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration, shall be London. The language to be used in the arbitral proceedings shall be English. The governing law of the contract shall be the substantive law of England and Wales.