Terms & Conditions
Live: 09/07/21
1 INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 DEFINITIONS
"Applicable Law" means any and all of the following each as is in force from time to time:
(a) any Act of Parliament or subordinate legislation, any exercise of the Royal Prerogative, any enforceable community right within the meaning of Section 2 of the European Communities Act 1972, any other official request or requirement made by Statutory Authority or other body of competent jurisdiction in respect of which the Supplier or the Customer has a legal obligation to comply;
(b) any rule of equity or common law or the ruling, judgment or order of any Court;
(c) all orders, rules, regulations, ordinances, notices, guidance notes, schemes, warrants, bye-laws, directives, franchises, licences, permits, circulars and codes of practice issued or raised under or in connection with any of the foregoing;
(d) Data Protection Laws, and
(e) any amendment, update, consolidation, replacement or re-enactment of any of the foregoing.
"Business Day" means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
"Contract" the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions together with any applicable Specification Document.
"Control" has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
"Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures" as defined in the Data Protection Laws.
"Conditions" these terms and conditions as amended from time to time.
"Customer" means the organisation or person who purchases Goods and/or Services from the Supplier.
"Data Protection Laws" means the UK Data Protection Laws and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) as and when it is applicable.
"Delivery Location": has the meaning given in clause 4.2.
"Force Majeure Event": has the meaning given to it in clause 18.
"Goods" means the goods (or any part of them) as set out in the Order.
"Intellectual Property Rights" means all patents, utility models rights to inventions, registered and unregistered designs, copyright, 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 forms of intellectual property wherever in the world enforceable, in each case whether registered or unregistered and including all applications and rights to apply 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 applicable purchase order or Customer's written acceptance of the Supplier's Quotation as the case may be.
"Products" means Porta-Gantry; Porta-Gantry Rapide; Master Link Trolley; Gated Master Link Trolley; T-Davit; Porta Davit and Porta-Davit Quantum.
"Quotation" means a quotation or statement of works, including the Specification Document that provides details of the Goods or Services to be provided by the Supplier.
"Specification Document" means any description or specification for the Goods and/or Services, including any relevant plans or drawings, agreed by the Customer and Supplier, or other similar document describing the Goods and/or Services to be provided by the Supplier.
"Services" means the services, including the Goods, supplied by the Supplier as set out in the Specification Document.
"Supplier" means Reid Lifting Limited of Unit 1 Wyeview, Newhouse Farm Industrial Estate, Chepstow, Monmouthshire, NP16 6UD, United Kingdom.
"UK Data Protection Laws" means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2 Interpretation:
(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 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.
(d) 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.
(e) A reference to writing or written includes fax and email.
2 BASIS OF THE CONTRACT
2.1 Before the commencement of the Contract the Supplier shall submit to the Customer a Quotation specifying the Goods and Services to be supplied and the price payable subject to these Conditions.
2.2 The Customer shall notify the Supplier immediately if the Customer does not agree with the contents of the proposed Quotation.
2.3 Any Quotation given by the Supplier shall not constitute an offer, and is only valid for thirty (30) calendar days from the date of issue.
2.4 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.5 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order, at which point the Contract will come into existence (Commencement Date).
2.6 These Conditions shall apply to all contracts for the supply of Goods and Services by the Supplier to the Customer at the exclusion of any other terms the Customer seeks to impose or incorporate, or which are implied by law, trade, custom, practice or course of dealing.
2.7 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 and they shall not form part of the Contract or have any contractual force.
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.
2.9 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 GOODS
3.1 The Goods are described on the Supplier's website and/or in their catalogue as modified by the Specification Document.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification Document 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 Specification Document. This clause 3.2 shall survive termination of the Contract.
4 DELIVERY OF GOODS
4.1 The Supplier shall ensure that 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 under Incoterms Ex works, to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the completion of unloading 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.
4.5 The Supplier shall not be liable for any delay in delivery of, or failure to deliver, 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, 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.
4.7 If the Customer fails to take or accept delivery of the Goods within three (3) Business Days of the Supplier notifying 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:
(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; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.8 If ten (10) Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of the Goods, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.9 The Supplier may deliver the Goods by instalments and 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 All Goods and/or Products shall be required only to conform to their description in the Specification Document.
5.2 The Supplier warrants that as from delivery and for a period of two (2) years the Goods and all their component parts, where applicable are free from any defects in design, workmanship, construction or materials.
5.3 The warranty provided under clause 5.2 excludes consumable items including but not limited to castors, nuts, bolts, washers, strops, handles and bags.
5.4 The Supplier warrants that as from delivery and for a period of ten (10) years the Products are free from defects in material, workmanship and design (where the supplier is responsible for design).
5.5 The warranty provided under clause 5.4:
(a) must be registered by the Customer at https://uk.reidlifting.com/warranty within 90 Business Days following delivery in order to be effective;
(b) is not transferable to any other Supplier service;
(c) excludes Products that are resold after having been put into service;
(d) excludes failure or defective operation caused by operation in excess of recommended capacities, normal wear and tear, neglect, misuses, negligence, abuse or accident, and alteration or repair not authorised by the Supplier;
(e) excludes components and accessories not manufactured by the Supplier. The Customer's remedy for components and accessories not manufactured by the Supplier is limited to and determined by the terms and conditions of the warranty provided by the respective manufacturers of such components and accessories.
(f) excludes consumable items where they have been lost, damaged or suffered general wear and tear including but not limited to castors, nuts, bolts, washers, strops, handles and bags.
5.6 Subject to clause 5.1 the Supplier shall, at its option, repair or replace the defective Goods and/or Products, or refund the price of the defective Goods and/or Products in full if;
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods and/or Products do not comply with the warranties set out in clauses 5.2 or 5.4;
(b) the Supplier is given a reasonable opportunity of examining such Goods and/or Products; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods and/or Products to the Supplier's place of business at the Customer's cost.
5.7 The Supplier shall not be liable for the Goods' and/or Products' failure to comply with the warranties in clauses 5.2 or 5.4 if:
(a) the Customer makes any further use of such Goods and/or Products after giving a notice in accordance with clause5.6 ;
(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 and/or Products or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer modifies, alters or repairs such Goods and/ or Products after manufacture without the prior written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods and/or Products differ from the Specification Document as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
Except as expressly stated in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' and/or Products' failure to comply with the warranties set out in clauses 5.2 and 5.4.
5.8 Other than as set out in this clause 5, no other express warranties, and no implied warranties, oral or written, including but not limited to the warranties of merchantability or fitness for a particular purpose, are made by the Supplier with respect to the Products and/or the Goods and all such warranties are hereby specifically disclaimed.
5.9 The Customer's sole remedy under the warranties set out in clauses 5.2 and 5.4 is limited to the replacement or repair of the Goods and/or Products in accordance with clause 5.6. The Customer shall be solely responsible for all freight and transportation costs incurred in connection with any warranty work provided by the Supplier hereunder, unless otherwise agreed in writing by the Supplier.
5.10 The terms of these Conditions shall apply to any repaired or replacement Goods or Products 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 in the Goods shall not pass to the Customer until the Supplier has received payment in full all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Supplier from the Customer on any other account.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) 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;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.1(a) to clause 15.1(f);
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5 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.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1(a) to clause 15.1(f) then, without limiting any other right or remedy the Supplier may have:
(a) the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) 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 Document.
7.2 The Supplier warrants to the Customer that the Services will be performed using reasonable skill and care.
7.3 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.
8 CUSTOMER`S OBLIGATIONS
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification Document 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 any information and/or materials as the Supplier reasonably requires in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) obtain all necessary permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) comply with all Applicable Laws and any other requirements set out in the Specification Document or otherwise agreed between the parties; and
(g) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customers premises in safe custody and in good condition, 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.
8.2 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 clause 8.2; 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.
8.3 The Customer shall be liable to compensate the Supplier for any costs, damages, fines, losses expenses incurred by the Supplier as a result of the Customer's failure to comply with clause 8.1.
8.4 Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer terminates the Contract or cancels the agreed Goods and/or Services agreed, the Customer shall be required to pay to the Supplier as agreed damages and not as a penalty the full amount of any third party costs to which the Supplier has committed or agreed.
8.5 In respect of cancellations which are less than five (5) Business Days' from either the start date of the Services or agreed delivery date for the supply of Goods, the Customer will be liable to the Supplier for the full amount of the Goods and/or Services, and the Customer agrees that this is a genuine pre-estimate of the Supplier's losses in such a case.
8.6 For the avoidance of doubt, the Customer's failure to comply with any obligations under clause 8.1, it shall be deemed to be a cancellation of the Goods and Services and subject to the payment of the damages set out in this clause 8.
8.7 In the event that the Customer or any third party, not being a sub-contractor of the Supplier, through their acts and omissions, prevents or delays the Supplier from undertaking or complying with any of its obligations under the Contract, then the Supplier shall notify the Customer as soon as possible and:
(a) the Supplier shall have no liability in respect of any delay to the provision of the Services of supply of Goods;
(b) if applicable, the timetable for the project or delivery date will be modified accordingly;
(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 such delay.
9 RETURNS AND/OR CANCELLED ORDERS
9.1 The Customer may return the Goods to the Supplier, subject to the following conditions:
(a) Goods must be returned within thirty (30) calendar days from the date of delivery;
(b) Goods must be unused, not damaged and in a resalable condition;
(c) Goods must be returned via tracked mail and at the Customer's cost.
9.2 Notwithstanding clause 9.1, all returns are at the Supplier's discretion and the Supplier reserves the right to refuse to accept a return of Goods.
9.3 All returns are subject to a 25% restocking fee which the Supplier may off set against any reimbursement of the price paid for the Goods by the Customer.
9.4 Notwithstanding clause 9.1, any Goods which were designed or manufactured for the Customer using a bespoke specification or which the Supplier does not believe can be resold due to the uniqueness of the Goods, may not be returned, unless in accordance with clause 5.
9.5 Except where otherwise set out in these Conditions, once an Order has been accepted by the Supplier, the Customer cannot cancel an Order without the Supplier's prior written agreement. The Supplier reserves the right to charge the Customer for any costs and fees which may have been incurred up to the date of cancellation.
9.6 Where the goods and products are received by the customer and found to be damaged, the customer must notify the supplier within 7 days of receiving the order, including evidence of the damage. If the customer fails to notify the supplier within this time period the supplier will not consider any claim. Any remedy and the nature of that remedy is at the suppliers discretion and choice.
10 PRICE AND PAYMENT
10.1 The price for the Goods:
(a) shall be the price set out in the Order;
(b) shall be inclusive of all costs and charges for packaging but exclusive of any insurance and transport which is arranged and ordered, insurance, transport of the Goods separately at additional cost to the Customer.
10.2 The charges for Services:
(a) shall either be as set out in the Order; or
(b) shall be calculated on a time and materials basis in accordance with the Supplier's daily fee rates, as set out in the Order;
(c) the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(d) the Supplier shall be entitled to charge an overtime rate of 150% of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause (c); and
(e) 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.
10.3 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;
(b) increase the price for 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:
(i) any factor beyond the control of the Supplier (including but not limited to foreign exchange rate fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery dates, quantities or type of Goods ordered or the Specification Document;
(iii) 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.
10.4 The Supplier shall invoice the Customer on or at any time after dispatch of the Goods and in respect of the Services, on completion of the Services.
10.5 The Customer shall pay each invoice submitted by the Supplier in full and in cleared funds to a bank account nominated in writing by the Supplier within thirty (30) days from the date of the invoice(s) and time for payment shall be of the essence.
10.6 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.
10.7 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, 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 10.7 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%.
10.8 In the event that the Customer's procedures require that an invoice be submitted against a purchase order for payment, the Customer shall be responsible for issuing such purchase order before the Goods and Services are supplied and the Supplier will have no liability to the Customer for a failure to comply with the same.
10.9 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).
11 CHANGES TO THE SPECIFICATION DOCUMENT
11.1 The parties may at any time mutually agree upon and execute an amendment to the Order or Specification Document.
11.2 Any alterations or updates to the Order or Specification Document shall be conditional on the parties agreeing any changes to the price and any other applicable terms.
11.3 The Customer may at any time request alterations to the Order or Specification Document by notice in writing to the Supplier and the Supplier shall, within five (5) Business Days or such other period as may be agreed between the parties, advise the Customer whether it agrees to such alterations and the effect of the same, if any, on the price and any other terms already agreed between the parties.
11.4 Where the Supplier agrees to any alterations on terms different to those already agreed between the parties, the Customer shall, within five (5) Business Days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier in writing whether or not it wishes to proceed with the alterations.
11.5 Where the parties have agreed to an alteration, the Specification Document shall be amended by the Supplier or the Customer to reflect such alterations.
11.6 The Supplier reserves the right to amend the Specification Document insofar that it relates to the Services if necessary to comply with any Applicable Laws, 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.
12 INDEMNIFICATION
12.1 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to 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:
(a) any breach or negligent performance or non-performance of the Contract by the Customer;
(b) 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 any Specification Document;
(c) any claim made against the Supplier by a third party arising out of or in connection with the provision of the Services or supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Customer, its employees, agents or subcontractors;
(d) any claim made against the Supplier by a third party for death, personal injury or damage to property arising out of or in connection with defective Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Customer, its employees, agents or subcontractors.
12.2 This indemnity shall apply whether or not the Supplier has been negligent or at fault.
13 CONFIDENTIALITY
13.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five (5) 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 13.2.
13.2 Each party may disclose the other party's confidential information;
(a) 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 13;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
14 LIMITATION OF LIABILITY - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 The restrictions on liability in this clause 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 Nothing in the Contract shall limit any liability which cannot legally be limited including liability for:
(a) death or personal injury due to its 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).
14.3 Subject to clause 14.1 the entire liability of the Supplier to the Customer in respect of any claim, whether or not arising out of negligence, shall be limited to the price paid by the Customer to the Supplier under the Contract to which the claim relates.
14.4 Subject to clause 14.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) for any loss of business or sales;
(b) loss of opportunity;
(c) loss of profits
(d) loss of agreements or contracts;
(e) loss of anticipated savings;
(f) loss of use or corruption of software, data or information;
(g) loss of or damage to goodwill; and
(h) any indirect or consequential loss or damage whatsoever.
14.5 Clause 14.4 shall apply even where such a loss was reasonably foreseeable or the Supplier had been made aware of the possibility of the Customer incurring such a loss.
14.6 The terms implied by sections 13 – 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.7 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire twelve (12) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
14.8 This clause 14 shall survive termination of the Contract.
15 TERMINATION
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract forthwith by notice in writing to the other if:
(a) the other party commits a material breach of the Contract and, in the case of a breach capable of being remedied, fails to remedy it within twenty (20) Business Days of being given written notice from the other party to do so;
(b) the other party commits a material breach of the Contract which cannot be remedied under any circumstances;
(c) the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
(d) the other party suspends, or threatens to suspend, or ceases to carry on its business or substantially the whole of its business;
(e) the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets; or
(f) 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.
15.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
15.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of the Goods under the Contract or any other contract between the Customer and 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 15.1(a) to clause 15.1(f) or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15.4 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 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 the Contract.
15.5 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.
15.6 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
16 INTELLECTUAL PROPERTY RIGHTS
16.1 All Intellectual Property Rights in arising 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.
16.2 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 licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Supplier Materials in its business.
16.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 16.2.
16.4 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.
17 DATA PROTECTION
When processing any personal data disclosed by the other party in accordance with this agreement ("Personal Data"), both parties shall, without prejudice to their own general obligations to comply with the Data Protection Laws, process the Personal Data only in accordance with the Data Protection Laws and shall not do, or fail to do, or permit to be done, anything which causes the other party to be in breach of its obligations under the Data Protection Laws. The Supplier shall process Personal Data in accordance with the privacy policy available on its website.
18 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes or lock outs (excluding either party's own personnel), accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services (a Force Majeure Event), and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
19 INDEPENDENT CONTRACTORS
19.1 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.
19.2 The Supplier may, in addition to its own employees, engage sub-contractors to provide all or part of the Services being provided to the Customer and such engagement shall not relieve the Supplier of its obligations under the Contract.
20 ASSIGNMENT
20.1 The Customer shall not be entitled to assign its rights or obligations or delegate its duties under the Contract without the prior written consent of the Supplier.
20.2 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.
21 SEVERABILITY
If any provision or part-provision of the Contract is held invalid, illegal or unenforceable it shall be 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 17.3 shall not affect the validity and enforceability of the rest of the Contract.
22 WAIVER
22.1 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.
23 NOTICES
23.1 Any notice to be given by either party to the other may be served by email and personal service or by post to the address of the other party given in the Order or Specification Document or such other address as such party may from time to time have communicated to the other in writing.
23.2 Any notice shall be deemed to be received:
(a) If sent by email or by fax, unless the contrary is proved, it will be deemed to be received one (1) Business Day after transmission;
(b) if delivered by hand, it shall be deemed to have been received on the following Business Day; or
(c) If sent by pre-paid first class post or next Business Day delivery service, the notice shall be deemed to have been received at 9.00am on the second Business Day after posting.
24 VARIATION
Unless expressly provided elsewhere in these Conditions, the Contract may only be varied by agreement of both parties in writing.
25 ENTIRE AGREEMENT
25.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, arrangements, assurances, promises, representations undertakings or proposals, between them, whether oral or written relating to the subject matter.
25.2 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.
25.3 In the event of a conflict between these Conditions and the Specification Document, these Conditions shall prevail.
26 NO THIRD PARTIES
Unless it expressly states otherwise, nothing in the Contract does not give rise to any rights on any third party under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
27 GOVERNING LAW AND JURISDICTION
The Contract shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts.
28 LANGUAGE
28.1 This Contract is drafted in the English language
28.2 Any notice given under or in connection with this Contract shall be in English. All other documents provided under or in connection with this agreement shall be in English, or accompanied by a certified English translation.
28.3 The English language version of this Contract and any notice or other document relating to the Contract shall prevail if there is a conflict.