The following definitions and rules of interpretation apply in these Conditions.
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions these terms and conditions as amended from time to time in accordance with clause 17.8
Contract the contract between the Supplier and the Customer for the supply of Goods and/or services in accordance with these conditions.
Customer the person or entity who purchases the Goods and/or services from the Supplier.
Delivery Location the address for delivery of the Goods as set out in the Order.
Force Majeure Event has the meaning given to it in clause 15.
Goods the goods (or any part of them) set out in the order.
Goods Specification any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
Order the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form.
Services the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Specification the description or specification for the Goods and/or services provided (including any related plans. designs, drawings or requirements) that is provided by the Buyer or set out in the Order or otherwise agreed in writing by the Buyer and the Supplier.
Supplier Thames Restek UK Limited registered in England and Wales with company number 03387425.
Supplier Materials all materials, equipment, documents and other property of the Supplier.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
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.
A reference to writing or written includes email.
The clause headings are for convenience only and do not form part of the relevant clause or these Conditions.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions;
2.2 The Supplier is under no obligation to accept the Order and the Order shall be deemed to be accepted on the earlier of:
2.2.1 the Supplier issuing a written acceptance of the Order; or
2.2.2 the Supplier doing any act consistent with fulfilling the Order.
2.3 Once the Supplier accepts the Customer’s the Order, the Order cannot be cancelled without the written agreement of the Supplier;
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 nor 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 law, 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 30 Business Days from its date of issue;
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; and
2.8 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions;
3.1 The Goods are described in the Supplier's catalogue, brochure or other sales material as modified by any applicable Goods Specification;
3.2 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 Specification. This clause 3.2 shall survive termination of the Contract; and
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 Customer in any such event.
4. Delivery of Goods
4.1 The Supplier shall use all reasonable endeavours to ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the contract number all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), 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 The Supplier shall deliver the Goods to the Delivery Location;
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location, whether or not the Customer takes delivery of the Goods (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);
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event 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 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 or any other instructions that are relevant to the supply of the Goods;
4.6 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;
4.7 the Supplier cannot accept returns of or refunds on any customised Goods and/or products of Services delivered which are included in the Order by the Customer and which also meet the Specifications of the Goods set out in the Order; and
4.8 in respect of non-customised Goods and/or products of Services:
4.8.1 the Supplier can only accept returns of or refunds on any Goods delivered which are included in the Order as a result of an error by the Customer or the Supplier if the Goods are returned unused, unopened and in a resalable condition;
4.8.2 if the error in the Order was as a result of the actions of the Customer, any goods returned may be subject to a restocking fee equivalent to 10% of the value of the Goods; and
4.8.3 the Supplier also has the right to reject any returns unless they comply with clause 8.1.12
5. Quality of Goods
5.1 The Supplier warrants that on delivery, and for a period of 3 months from the date of delivery, the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification; and
5.1.2 be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier during the period calculated using clause 5.1 within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (only if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost, and the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. The Supplier has the right to reject any returns unless they comply with clause 8.1.12.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2 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, used the Goods or any products of the Services for clinical use, or good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.3.6 the Goods differ from their description and/or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 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 5.1; and
5.5 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 when the Goods are provided to or collected by the third party carrier and/or delivery service, whose service shall be arranged by the Supplier at the expense of the Buyer;
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 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; or
6.2.2 the Customer resells the Goods (if the Customer has the requisite permission set out in 8.1.11), in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
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 13.1.2 to clause 13.1.4; and
6.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to:
188.8.131.52 the Goods; and
184.108.40.206 the ongoing financial position of the Customer.
6.4 Subject to clause 6.5, the Customer may resell (if the Customer has the requisite permission set out in 8.1.11) or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods (if the Customer has the requisite permission set out in 8.1.11) before that time:
6.4.1 it does so as principal and not as the Supplier's agent; and
6.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, the Supplier may:
6.5.1 by notice in writing, terminate the Customer's right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
6.5.2 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and 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 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 Order, 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 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; and
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 and any information it provides in the Specification are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to 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;
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. If the Customer is distributing any Goods and/or products of Services to any third party pursuant to clause 8.1.10, the Customer shall also comply with any applicable export and anti-corruption laws, regulations, orders, rules, restrictions, decisions, directions, judgments, decrees and/or impositions that may be in place and/or enforced by the Government or a Government body and/or any authority that derives its power from the Government or a Government body;
8.1.8 keep the 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;
8.1.9 comply with any additional obligations as set out in the Specification;
8.1.10 not use and/or cause anyone under its control to use any Goods and/or products of the Supplier’s Services for clinical use;
8.1.11 the Customer may not resell or distribute any Goods and/or products of Services to any third party unless authorised to do so in writing by the Supplier; and
8.1.12 not return any Goods or products of Services to the Supplier without first contacting the Supplier and obtaining prior authorisation to return the Goods or products of Services from the Supplier. The Supplier cannot accept any unauthorised returns and any attempts by the Customer to make an unauthorised return may be subject to a restocking fee equivalent to 10% of the value of the Goods (the Customer is directed towards our Returns Policy on our website for information on how to contact the Supplier in such a situation)
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 (the “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 Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of the Order; 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 in accordance with the Supplier's daily fee rates, as set out in its price list at the date of the Order;
9.3 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, 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.
9.4 The Supplier reserves the right to:
9.4.1 increase the charges for the Services on an annual basis;
9.4.2 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:
220.127.116.11 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials, other manufacturing costs, and / or third party costs passed on to the Supplier by its supply chain);
18.104.22.168 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
22.214.171.124 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.
9.5 In respect of Goods and Services, the Supplier shall either:
9.5.1 invoice the Customer on completion of the Services or delivery of the Goods (or at a different point in time agreed otherwise in writing between the Supplier and the Customer); or
9.5.2 require that the Customer makes an advanced payment in respect of some or all costs relating to the Order either:
126.96.36.199 prior to the Supplier taking any steps to provide the Goods or Services as a condition of the Order; or
188.8.131.52 prior to any instalment (as described at clause 4.6); or
184.108.40.206 prior to providing a further Order of Goods and/or Services where such Goods and/or Services are provided to the Customer on a regular basis regardless of any previous agreement with the Customer regarding invoicing.
9.6 The Customer shall put the Supplier in full and in cleared funds to a bank account nominated in writing by the supplier within either 30 days of the date of the invoice submitted to the Customer by the Supplier (unless agreed otherwise in writing between the Supplier and the Customer), or prior to the Supplier accepting the offer (as described at clause 2.1);
9.7 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;
9.8 If the Customer fails to make a payment due to the Supplier under the Contract by the due date calculated by clause 9.6, then, without limiting the Supplier's remedies under clause 13, 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 9.8 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%; and
9.9 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. Data protection
10.1 The following definitions apply in this clause 10:
10.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
10.2.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
10.1.3 Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
10.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
10.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor;
10.4 Without prejudice to the generality of clause 10.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract;
10.5 Without prejudice to the generality of clause 10.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
10.5.1 process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
10.5.2 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);
10.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
10.5.4 not transfer any Personal Data outside of the UK (excepting transfers between the Supplier and its group and sister companies internationally) unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
10.5.4.1 the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
10.5.4.2 the Data Subject has enforceable rights and effective legal remedies;
10.5.4.3 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
10.5.4.4 the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data.
10.5.5 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;
10.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
10.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
10.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 10.
10.6 The Customer consents to the Supplier appointing a third-party processor of Personal Data under the Contract as the Supplier deems appropriate for the performance of the Order; and
10.7 Either party may, at any time on not less than 30 days' notice, revise this clause 10 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.
11.2 Each party may disclose the other party's confidential information:
11.2.1 to companies within its corporate group domestically and overseas, its employees, officers, representatives, contractors or subcontracts 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 the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 11; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
12.1 To the fullest extent permitted by law, the Customer may not bring and/or pursue any action, claim, demand, enforcement of rights and/or obligations, and/or set-off against the Supplier more than one year after the cause of action accrued to the Customer;
12.2 the Supplier’s total aggregate liability in respect of all Goods and/or Services shall not in any circumstances exceed the amount paid by the Customer for those Goods and/or Services;
12.3 The restrictions on liability in this clause 12 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise;
12.4 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default;
12.5 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
12.5.1 death or personal injury caused by negligence;
12.5.2 fraud or fraudulent misrepresentation;
12.5.3 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); and
12.5.4 defective products under the Consumer Protection Act 1987.
12.6 Subject to clause 12.5, the Supplier's total liability to the Customer shall not exceed the amount set out in clause12.2;
12.7 Any amount awarded or agreed to be paid under the Contract or pursuant to these Conditions shall count towards the cap on the Supplier's liability under clause 12.6;
12.8 This clause 12.8 sets out specific heads of excluded loss:
12.8.1 Subject to clause 12.4 and clause 12.5, clause 12.8.2 excludes specified types of loss;
12.8.2 The following types of loss are wholly excluded:
220.127.116.11 loss of profits;
18.104.22.168 loss of sales or business;
22.214.171.124 loss of agreements or contracts;
126.96.36.199 loss of anticipated savings;
188.8.131.52 loss of use or corruption of software, data or information;
184.108.40.206 loss of or damage to goodwill; and
220.127.116.11 indirect or consequential loss.
12.9 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 the Contract;
12.10 The Supplier may at its discretion from time to time provide and/or suggest technical assistance, advice and/or information to the Customer at the Customer’s request. However, the Supplier accepts no liability for the success, accuracy, validity or otherwise of said technical assistance, advice and/or information and makes no warranty in respect of the same; and
12.11 This clause 12 shall survive termination of the Contract.
13.1 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:
13.1.1 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 30 days after receipt of notice in writing to do so;
13.1.2 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), obtaining a moratorium, 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;
13.1.3 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
13.1.4 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is 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:
13.2.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or.
13.2.2 there is a change of Control of the Customer.
13.3 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 13.1.2 to clause 13.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
14. Consequences of termination
14.1 On termination of the Contract:
14.1.1 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;
14.1.2 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.
14.2 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.
14.3 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.
15. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control including but not limited to (a) acts of God, fire, flood, drought, earthquake, windstorm, other natural disaster and/or other adverse weather conditions, (b) an act of any sovereign or government body including any or all of impositions of sanctions, embargos, blockades, breaking off of diplomatic relations, invasion, revolution, war, armed conflict (or the threat of and/or preparation for any or all of the foregoing), (c) any or all of acts of terrorism, civil war, commotion or riot (or the threat of and/or preparation for any or all of the foregoing) (d) law, order, rule, regulation, restriction, decision, direction, judgment, decree, imposition, recommendation and/or advice enforced and/or provided by any sovereign or government body or public authority (e) epidemic or pandemic (or the threat of and/or preparation for any or both of the foregoing) (f) labour dispute including but not limited to any or all of strikes, industrial action, lockouts or boycott (g) interruption or failure of utility services including but not limited to any or all of electricity, gas, water, internet or telephone service (h) damage to and/or collapse of and/or failure of any equipment necessary to provide the Goods and/or the Services by the Supplier including but not limited to buildings, plant, machinery, computers, vehicles, and/or other equipment (i) radioactive, nuclear, chemical or biological contamination, or sonic boom, pressure waves caused by aircraft travelling at sonic or supersonic speeds (j) failure of the transportation of any personnel, equipment, machinery supply or material required by a party for performance of the agreement (k) non-performance by suppliers or sub-contractors (a “Force Majeure Event”). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 30 days, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.
16. DISPUTE RESOLUTION AND ARBITRATION
16.1 All disputes arising out of or in connection with the Contract or these Conditions may at the Supplier’s sole discretion be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Chamber”) by one or more arbitrators appointed in accordance with the rules of the Chamber;
16.2 The arbitration shall be conducted:
16.2.1 in English;
16.2.2 in London, United Kingdom unless the Customer and Supplier mutually agreed an alternative location;
16.2.3 according to the laws of England and Wales; and
16.2.4 by an arbitrator mutually agreed upon by the Customer and the Supplier or, in the event the Customer and the Supplier cannot agree an arbitrator, by the president of the Chamber.
16.3 The decision of the arbitrator shall be final and binding upon the parties; and
16.4 The costs of the arbitration shall paid to the prevailing party in the arbitration by the defeated party, to be assessed if not agreed.
17.1 Assignment and other dealings
17.1.1 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.
17.1.2 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.
17.2.1 Any notice or other communication given to a party under or in connection with the Contract 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).
17.2.2 Any notice or communication shall be deemed to have been received:
18.104.22.168 if delivered by hand, at the time the notice is left at the proper address; or
22.214.171.124 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.
126.96.36.199 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;
188.8.131.52 The Supplier may from time to time need to issue recall notices or other product notifications. Any such recall notice or product information shall be sent to the email address provided with the Order or, if no such email address is provided, to the Delivery Address.
17.2.5 Save for clause 17.2.4, a notice given under the Contract is not valid if sent by email only.
17.3 Severance. If any provision or part-provision of the Contract or these Conditions 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 the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
17.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy 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.
17.6.1 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.
17.6.2 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 based on any statement in the Contract.
17.7 Third party 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.
This page was last edited on the 26-01-2022.