General Terms and Conditions
Poulten Selfe & Lee Ltd
The Customer’s attention is particularly drawn to the provisions of 14 (Limitation of liability).
1. Definitions and Interpretation
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.
Business Hours: the period from 8.15 am to 5.00 pm on any Business Day.
Commencement Date: has the meaning given in 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with se 18.8.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
Deliverables: deliverables, set out in the Quotation, produced by the Supplier for the Customer.
EXW: Ex-Works basis as set out in the Incoterms.
FCA: Free Carrier basis, as set out in the Incoterms, from the Supplier’s premises at Burnham-on-Crouch, Essex. UK.
Force Majeure Event: has the meaning given to it in 17.
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.
Incoterms: the International Commercial Terms published from time to time by the International Chamber of Commerce.
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: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or the Supplier’s web order form or the Customer’s written acceptance of the Quotation as the case may be.
Quotation: a quotation in relation to provision of the Goods and/or Services given by the Supplier to the Customer.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: Poulten, Selfe & Lee Limited registered in England and Wales with company number 00517382.
Supplier Materials: has the meaning given in 9.1(h).
Third Party Goods: Goods supplied by the Supplier but manufactured by a third party.
Third Party Terms: the terms on which Third Party Goods are supplied to the Supplier.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Warranty Period: has the meaning given in 5.3.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) 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.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written excludes fax but not email.
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 Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Supplier may accept or reject Orders at its absolute discretion.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any illustrations or descriptions of the Goods and/or Services contained in the Supplier’s catalogues, brochures or marketing materials 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 A Quotation does not constitute an offer. A Quotation is only valid for the fixed period stated on it. If the Quotation does not specify its validity period it 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.
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 and website 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 reasonable 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 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.
4. Delivery of Goods
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a despatch note which shows the date of the Order, the 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.
4.2 The Supplier’s acceptance of the Order will set out the agreed delivery arrangements (if any) by reference to the applicable Incoterms.
4.3 If Goods are delivered on an EXW basis or FCA then the Customer must collect the Goods from the Supplier and the Good are delivered to the Customer upon such collection.
4.4 If Goods are delivered on any basis other than EXW or FCA then the Supplier will arrange delivery of the Goods to a place specified by the Customer [(and agreed by the Supplier) in accordance with the agreed delivery arrangements (see clause 4.1).
4.5 Any dates quoted for despatch and delivery of the Goods are approximate only, and the time of despatch and 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.
4.6 If the Supplier fails to deliver the Goods in breach of these Conditions, 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.
4.7 If the Customer fails to take delivery of the Goods either (i) within ten Business Days of the Supplier notifying the Customer that the Goods are ready (where goods are provided on an EXW or FCA) or (ii) within three Business Days of the Supplier attempting to deliver Goods (where Goods are provided otherwise an on an EXW or FCA basis) and in each case 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:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready or attempted to deliver the Goods (as the case may be); and
(b) the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance); and
(c) if twenty Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery or attempted to deliver the Goods (as the case may be) the Customer has not taken actual 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. If, after such deductions, there is any excess above the price of the Goods the Supplier and the Customer will share such excess equally.
4.8 If the Supplier delivers up to and including 5% 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 Conditions and warranties relating to the quality of Third Party Goods are set out in the relevant Third Party Terms in substitution for the relevant provisions of the Contract. Copies of relevant Third Party Terms are available from the Supplier on the Customer’s request. The Customer acknowledges and agrees that warranties and assurances in relation to the quality of Third Party Goods contained in Third Party Terms may be less comprehensive than those set out in the Contract.
5.2 No warranty is given in relation to glassware.
5.3 Subject to clause 5.1, clause 5.2 and clause 5.5, the Supplier warrants that on despatch of the Goods, and for a period of 12 months from the date of such despatch (Warranty Period), the Goods shall:
(a) conform in all material respects with the Goods Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.4 Subject to clause 5.1, clause 5.2 and 5.5, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods using suitable and appropriate packaging using a reputable carrier of goods to the Supplier’s place of business at the Customer’s cost and risk,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.5 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with 5.4;
(b) 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 regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of:
- in the case of viscosity reference oils and bath liquids and any similar items, exposure to sunlight or contamination;
- the Customer’s specification;
- fair wear and tear;
- wilful damage;
- improper installation;
- improper or unstable power supply;
- use of methods not authorised by the Supplier;
- use of chemicals or solvents not authorised by the Supplier;
- use in a hazardous area (e.g. in a corrosive environment), or for a use which has not been notified to and approved by the Supplier; or
- abnormal working conditions (e.g. excessive vibration);
(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
(e) the Goods are reasonably deemed by the Supplier to be consumable items with a lifespan dependant on their use. For example, such items may include vacuum pump diaphragms, glass syringes, plungers, solenoid valves, pressure pumps, motors in stirrer modules, filling station screw caps, and bath or other liquids.
5.6 Except as provided in this 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in 5.1.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier save that any such repair or replacement shall not extent the Warranty Period offered by the Supplier or any Third Party Terms.
6.1 The risk in the Goods shall pass to the Customer on completion of delivery. This means that:
(a) in the case of EXW and FCA and where the Supplier does not arrange the delivery of the Goods, risk will pass to the Customer once loading of the Goods starts; and
(b) except as detailed at clause 6.1(a), risk will pass to the Customer when the Goods are at the agreed delivery point (see clause 4.2) but before the Goods are unpacked (which expression will include unpacking for the purposes of inspection) or unloaded.
6.2 The Supplier will insure the Goods until risk passes to the Customer. Note that risk passes before unpacking and unloading therefore the Supplier’s insurance does not cover the risk of unpacking or unloading. This is particularly important for glass items that may be broken during unpacking, unloading or inspection.
6.3 The Supplier carefully packs all Goods prior to despatch. The Customer is strongly advised to insure the Goods once risk passes to the Customer since the Supplier does not accept responsibility for any risk, including breakages, after such time.
6.4 Goods returned to the Supplier for whatever reason are at the Customer’s own risk including during transit and while at the Supplier’s premises.
7. Title and Ownership
7.1 Title to the Goods shall not pass to the Customer until the earlier of:
(a) 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; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in 7.3.
7.2 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis and as the Supplier’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) 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;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in 15.2(b) to 15.2(d); and
(f) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
- the Goods; and
- the ongoing financial position of the Customer.
7.3 Subject to 7.4, the Customer may resell 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 before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.4 At any time before title to the Goods passes to the Customer, the Supplier may:
(a) by notice in writing, terminate the Customer’s right under 7.3 to resell the Goods or use them in the ordinary course of its business; and
(b) 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.
8. Supply of Services
8.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
8.2 The Customer is responsible for the condition of any Goods delivered to the Supplier in connection with the Service.
8.3 If the Supplier accepts Goods from the Customer in order to perform the Service, the Supplier will notify the Customer of the Service that the Supplier believes to be necessary or desirable and the cost of such Service within a reasonable period (Service Notice).
8.4 The Customer must inform the Supplier within five Business Days of receiving a Service Notice if the Customer does not wish to receive the Services specified in the Service Notice. In which case, the Supplier will not perform any of those Services and the Customer must collect the Goods from the Supplier within five Business Days of the Customer so informing the Supplier.
8.5 The Supplier will use reasonable endeavours to take care of any Goods provided by the Customer in connection with the Service but such Goods will remain at the Customer’s risk and the Customer is advised to insure such Goods for all usual risks while they are in the custody of the Supplier.
8.6 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.
8.7 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.
8.8 Subject to clause 8.9, the Supplier warrants to the Customer that the Services will be provided using reasonable care and skill and in accordance with good industry practice.
8.9 The Customer acknowledges and agrees that, due to the number of variables, test report results are only valid for that particular test run and that test report results may not be reproduced when the test is repeated. If the Customer doubts the accuracy of the test report results then the Supplier will repeat the test and issue a new test report results which may not necessarily be the same as the previous test report results.
8.10 If the Supplier repairs the Customer’s Goods, then the Supplier warrants that such repair will be free from material defects in workmanship for a period of three months from the date that the Customer’s Goods are made available for return.
9. Customer’s obligations
9.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides to the Supplier including in the Service Specification and the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) 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;
(d) 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;
(e) prepare the Customer’s premises for the supply of the Services;
(f) 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;
(g) comply with all applicable laws, including health and safety laws;
(h) 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;
(i) comply with any additional obligations as set out in the Service Specification and the Goods Specification; and
(j) undertake due diligence and sample testing before using any test report results in a live environment.
9.2 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):
(a) 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;
(b) 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 9; and
(c) 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.
10. Charges and payment
10.1 The price for Goods:
(a) shall be the price set out in the Quotation; and
(b) shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
10.2 The charges for Services:
(a) shall be calculated in accordance with the Supplier’s fee rates, as set out in the Quotation;
(b) the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day worked on Business Days;
(c) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier deploys or 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; and
(d) the Supplier shall be entitled to charge the Customer for any Services it cannot perform due to the act or omission of the Customer or if the Customer cancels the Service without giving to the Supplier twenty one Business Days’ prior written notice.
10.3 Payment must be made in the currency specified in the Quotation.
10.4 The Supplier reserves the right to:
(a) increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the increase in the Supplier’s cost of providing the Service;
(b) increase the price of the Goods, by giving notice to the Customer at any time up to twenty Business Days before despatch of the Goods, to reflect any increase in the cost of the Goods to the Supplier that is due to:
- 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);
- any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
- 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.
10.5 In respect of Goods, the Supplier shall invoice the Customer prior to despatch of the Goods. In respect of Services, the Supplier shall invoice the Customer as specified in the Quotation.
10.6 The Customer shall pay each invoice submitted by the Supplier:
(a) as specified in the Quotation;
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier or by an irrevocable letter of credit in favour of the Supplier issued by a reputable UK bank such letter of credit to be payable on sight. The Customer shall be responsible for any bank charges associated with such letter of credit and the expiry date of such letter of credit must be a minimum of four months from the date of issue.
10.7 If the Customer fails to pay the Supplier in accordance with the Contract, the Supplier may without prejudice to its other rights and remedies refuse to dispatch the Goods, charge the Customer for storage of the Goods and claim damages.
10.8 If the Supplier has agreed a credit account with the Customer then the Customer must pay the Supplier for the goods in full and in cleared funds within thirty days of the date of despatch of the Goods.
10.9 Time for payment shall be of the essence of the Contract.
10.10 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.
10.11 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 15, 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 10.11 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%.
10.12 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).
11. Intellectual property rights
11.1 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.
11.2 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 business.
11.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by 11.2.
11.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable 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.
11.5 If the Supplier has provided embedded software (Software), the Customer hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions:
(a) the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement or for normal operation of the Goods), reproduce, translate, adapt, vary or modify the software, nor communicate it to any third party, without Supplier’s prior written consent;
(b) the Customer shall not use the Software on any equipment other than the Goods, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides;
(c) such licence shall be terminable by either party on twenty eight days’ written notice, provided that the Supplier terminates only if the continued use or possession of the Software by the Customer infringes the developer’s or a third party’s rights, or the Supplier is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract; and
(d) on or before the expiry of this licence, the Customer shall return to the Supplier or permanently delete (as specified by the Supplier) all copies of the Software in its possession.
12. Data protection
13.1 Each party undertakes that it shall not at any time, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by 13.2
13.2 Each party may disclose the other party’s confidential information:
(a) to 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 ause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 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.
14. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 The restrictions on liability in this 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
(d) defective products under the Consumer Protection Act 1987.
14.4 Subject to 14.3, the Supplier’s total liability to the Customer in relation to or arising out of or in connection with each Order shall not exceed the value of that Order.
14.5 This 14.5 sets out specific heads of excluded loss and exceptions from them:
(a) Subject to 14.2 and 14.3 14.5(b) excludes specified types of loss.
(b) The following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
14.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in 5 and 8. 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 together with all other warranties, conditions, and other terms implied by law are, to the fullest extent permitted by law, excluded from the Contract.
14.7 This 14 shall survive termination of the Contract.
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than three months’ written notice.
15.2 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:
(a) 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 thirty days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), 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;
(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 so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
15.3 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.
15.4 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 15.2(b) to 15.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
16. Consequences of termination
16.1 On termination of the Contract:
(a) 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;
(b) 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.
16.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
17. Force majeure
17.1 Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving ten Business Days’ written notice to the affected party.
17.2 Force Majeure Event means any circumstance not within a party’s reasonable control including:
(a) acts of God, flood, drought, earthquake or other natural disaster or extreme adverse weather conditions;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts (whether involving its own workforce or a third party’s);
(h) failure of infrastructure such as failure of energy sources, transportation networks and telecommunications networks (including the internet) and failure or interruption of utility service;
(i) non-performance by suppliers or subcontractors including unavailability of component parts;
(j) malicious damage or breakdown of plant and machinery.
18. 1 Assignment and other dealings
(a) 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.
(b) 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.
(a) Any notice 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); or
- sent by email to an e-mail address provided in writing by the party to be served and generally used for communications in connection with the Goods or Services.
(b) Any notice shall be deemed to have been received:
- if delivered by hand, at the time the notice is left at the proper address;
- 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
- if sent by email, provided that the e-mail header states “CONTRACTUAL NOTICE”, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) 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.
If any provision or part-provision of the Contract 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 18.3 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.
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18.5 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.
18.6 Entire agreement
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on 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 misstatement based on any statement in the Contract.
18.7 Third party rights
(a) 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.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
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).
18.9 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.
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.