1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions.
Contract; the Suppliers Contract for the provision of Services and / or Equipment incorporating these terms, or in the case of a smaller or one off piece of work, the written quote of the Supplier, and where applicable, a Method Statement.
Customer; the person, firm or company who purchases Services from the Supplier.
Customer’s Project Manager; the Customer’s manager for the Project appointed in accordance with condition 5.1(a).
Deliverables; all Equipment, products and materials including any developed by the Supplier in relation to the Project in any media, including, without limitation, computer programs, data, diagrams, reports and specifications (including drafts).
Equipment; the equipment agreed in the Contract to be purchased by the Customer from the Supplier (including without limitation any part or parts of it).
Pre-existing Materials; materials which existed before the commencement of the Project.
Project; the project for Services and /or equipment as described in the Contract or Method Statement.
Project Milestone; a date by which a part of the Project is estimated to be completed, as set out in the Contract or Method Statement.
Method Statement; If applicable the detailed plan describing the Project and setting out the estimated timetable and responsibilities for the provision of the Services by the Supplier in accordance with the Contract.
Services; the services to be provided by the Supplier under the Contract.
Software; any software installed on the Equipment.
Supplier; Opus-UK Limited, (CRN04997196) Unit 10 Campbell Way, Dinnington, Sheffield, S25 3QD.
Supplier’s Project Manager; the Supplier’s manager for the Project, appointed in accordance with condition 4.3.
VAT; value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.8 A reference to writing or written includes faxes and e-mail.
1.9 References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
2. Application of conditions
2.1 These conditions shall:
- apply to and be incorporated in the Contract; and
- prevail over any inconsistent terms or conditions contained in, or referred to in, the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
TERMS RELEVANT TO THE PROVISION OF SERVICES
3. Effect of purchase order for Services
The Customer’s purchase order constitutes an offer by the Customer to purchase the Services specified in it on these conditions; accordingly, the execution and return of the acknowledgement copy of the purchase order form by the Supplier, or the Supplier’s commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services on these conditions. The Customer’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.
4. Supplier’s obligations
4.1 The Supplier shall use reasonable endeavours to manage and complete the Project, and to deliver the Deliverables to the Customer, in accordance in all material respects with the Contract
4.2 The Supplier shall use reasonable endeavours to meet the performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence of the Contract.
4.3 The Supplier may appoint a Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Project. The Supplier shall use reasonable endeavours to ensure that the same person acts as Supplier’s Project Manager throughout the Project, but may replace him from time to time where reasonably necessary in the interests of the Supplier’s business.
5. Customer’s obligations
5.1 The Customer shall:
- co-operate with the Supplier in all matters relating to the Project and shall appoint a Customer’s Project Manager, if requested, who shall have the authority to contractually bind the Customer on matters relating to the Project;
- provide in a timely manner such access to the Customer’s premises and data, and such office accommodation and other facilities, as is requested by the Supplier;
- provide in a timely manner such information as the Supplier may request, and ensure that such information is accurate in all material respects, as it will be relied on by the Supplier; and
- be responsible (at its own cost) for preparing the relevant premises for the supply of the Services.
- If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or the Customer’s agents, sub-contractors or employees, the Customer shall in all circumstances be liable to pay to the Supplier on demand all reasonable and direct costs, charges or losses sustained or incurred by it, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
- The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of twelve months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of the Supplier.
- Any consent given by the Supplier in accordance with condition 5.3 shall be subject to the Customer paying to the Supplier a sum equivalent to 100% of the then current annual remuneration of the Supplier’s employee or sub-contractor or, if higher, 100% of the annual
6. Change control
6.1 The Customer’s Project Manager and the Supplier’s Project Manager shall meet as required to discuss matters relating to the Project. If either party wishes to change the scope of the Services, it shall submit details of the requested change to the other in writing.
6.2 If either party requests a change to the scope or execution of the Services, the Supplier shall, within a reasonable time, provide a written estimate to the Customer of:
- the likely time required to implement the change;
- any variations to the Supplier’s charges arising from the change;
- the likely effect of the change on the Method Statement; and (d) any other impact of the change on the terms of the Contract.
- If the Supplier requests a change to the scope of the Services, the Customer shall not unreasonably withhold or delay consent to it.
- If the Customer wishes the Supplier to proceed with the change, the Supplier has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the Method Statement and any other relevant terms of the Contract to take account of the change.
7. Charges and payment for Services
7.1 Condition 7.2 shall apply if the Services are to be provided on a time-and-materials basis. Conditions condition 7.3 and condition 7.4 shall apply if the Services are to be provided for a fixed price. The remainder of this condition 7 shall apply in either case.
7.2 Where the Services are provided on a time-and-materials basis:
- the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily or hourly fee rates as set out in the Contract;
- the Supplier’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.30 am and 5.30 pm on weekdays (excluding weekends and public holidays);
- the Supplier shall be entitled to charge at an overtime rate of 1.5 times the agreed hourly rate for work done outside of standard daily fee rates;
- the Supplier shall ensure that all members of the project team complete job sheets recording time spent on the Project, and the Supplier shall use such job sheets to calculate the charges covered by each monthly invoice referred to in condition 7.2(e); and
- the Supplier shall invoice the Customer monthly in arrear for its charges for time, expenses and materials (together with VAT where appropriate) for the month concerned, calculated as provided in this condition 7.
- Where the Services are provided for a fixed price the total price for the Services shall be the amount set out in the Contract. The total price shall be paid to the Supplier in instalments as set out in the Contract on its achieving the corresponding Project Milestone. All amounts due under this Agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). On achieving a Project Milestone, the Supplier shall invoice the Customer for the charges that are then payable, together with expenses and the costs of materials (and VAT, where appropriate), calculated as provided in condition 7.4.
- Any fixed price contained in the Contract excludes:
- the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the project team in connection with the Services, and the cost of any materials or services reasonably and properly provided by third parties required by the Supplier for the supply of the Services. Such expenses, materials and third party services shall be invoiced by the Supplier; and
- VAT, which the Supplier shall add to its invoices at the appropriate rate.
- The Customer shall pay each invoice submitted to it by the Supplier in full, and in cleared funds, within 30 days of receipt, unless otherwise agreed in writing.
- Without prejudice to any other right or remedy that the Supplier may have, if the Customer fails to pay the Supplier on the due date the Supplier may:
- charge interest on such sum from the due date for payment accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. ; and
- Suspend all Services until payment has been made in full.
- Time for payment shall be of the essence of the Contract.
- All payments payable to the Supplier under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
- The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
8. Intellectual Property Rights Services
8.1 All Intellectual Property Rights and all other rights in the Deliverables shall be owned by the Supplier. The Supplier, contingent on the Customer observing fully all the terms of a support or maintenance contract with the Supplier, on the Suppliers written terms, shall license all such rights to the Customer without additional charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services as is envisaged by the parties.
8.2 If the Supplier terminates the contract described at 8.1, this licence will automatically terminate.
- Basis of sale of Equipment
- Any quotation is valid for a period of 7 days only, and the Supplier may withdraw it at any time by notice to the Customer.
- Each order or acceptance of a quotation for Equipment by the Customer shall be deemed to be an offer by the Customer subject to these conditions. The Customer shall ensure that its order is complete and accurate.
- A binding contract shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a written order confirmation to the Customer, or the Supplier delivers the Equipment to the Customer (whichever occurs earlier).
- The Supplier may deliver the Equipment by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
- No order which has been acknowledged by the Supplier may be cancelled by the Customer, except with the written consent of the Supplier and provided that the Customer indemnifies the Supplier in full against all direct loss, costs and expenses incurred by the Supplier as a result of cancellation.
- Quantity and description
- The quantity and description of the Equipment shall be as set out in the Supplier’s order confirmation, or (if there is no order confirmation) quotation.
- All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.
- Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
- The Supplier reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer’s specification, which do not materially affect their quality or performance. Where the Supplier is not the manufacturer of the Equipment, the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier.
- The Supplier’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment.
11.1 All prices shall be as stated in the Supplier’s order confirmation. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties.
11.2 The price for the Equipment is based on the rate prevailing at the date of the Supplier’s acknowledgement of the order and the Supplier may increase the price to cover any increases due to market conditions (including without limitation increases in foreign exchange rates relating to the Equipment, or in labour, materials, supply or transportation costs) which affect the Supplier at the date of delivery.
11.3 The price of the Equipment shall be the Supplier’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Supplier’s price list current at the date of acceptance of the order. The Supplier’s published export price list shall apply to exports of the Equipment as appropriate.
11.4 The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment as has not been delivered to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
12.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier may invoice the Customer for the price of the Equipment on or at any time after delivery of the Equipment, unless:
- the Equipment is to be collected by the Customer; or
- the Customer wrongfully fails to take delivery of the Equipment,
and in either case the Supplier shall be entitled to invoice the Customer for the price at any time after the Supplier has notified the Customer that the Equipment is ready for collection.
12.2 The terms of payment shall be:
- in the case of Equipment delivered in the United Kingdom, within 30 days of the date of the Supplier’s invoice, unless otherwise agreed in writing, whether or not delivery has taken place or title in the Equipment has passed to the Customer; and
- in the case of export sales, in accordance with condition 16.5.
- Time for payment of the price shall be of the essence of the Contract.
- If the Customer fails to make payment in full on the due date, then the provisions of clauses 7.6 to 7.9 will apply.
13. Delivery of Equipment and acceptance
13.1 The Supplier shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in the Supplier’s acknowledgement of order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the order. Time is not of the essence as to the delivery of the Equipment and the Supplier is not in any circumstances liable for any delay in delivery, however caused.
13.2 The Equipment may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.
13.3 Delivery shall be made during normal business hours (excluding bank or public holidays). The Supplier may levy additional charges for any deliveries made outside such hours at the Customer’s request.
13.4 The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment. If the Supplier is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this event.
13.5 The Customer shall be deemed to have accepted the Equipment when the Customer has had 24 hours to inspect it after delivery and has not exercised in writing its right of rejection in accordance with condition 17.
13.6 The Supplier shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to the Supplier (or its carrier, if applicable) within 24 hours off delivery or the proposed delivery date of the Equipment and that the Equipment has been handled in accordance with the Supplier’s stipulations. Any remedy under this condition 13.6 shall be limited, at the option of the Supplier, to the replacement or repair of any Equipment which is proven to the Supplier’s satisfaction to have been lost or damaged in transit.
14. Risk and property
14.1 The Equipment shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Supplier’s acknowledgement of order. The Supplier shall off-load the Equipment at the Customer’s risk.
14.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including without limitation off-loading), or when the Supplier has received in full in cleared funds all sums due to it in respect of:
- the Equipment; and
- all other sums which are or which become due to the Supplier from the Customer on any account.
14.3 Until ownership of the Equipment has passed to the Customer under condition 14.2, the Customer shall:
- hold the Equipment on a fiduciary basis as the Supplier’s bailee;
- store the Equipment (at no cost to the Supplier) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as the Supplier’s property;
- not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
- keep the Equipment insured on the Supplier’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of the Supplier, ensure that the Supplier’s interest in the Equipment is noted on the policy, and hold the proceeds of such insurance on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
- The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to the Supplier on the due date.
- The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by the Supplier in repossessing the Equipment shall be borne by the Customer.
- On termination of the Contract for any reason, the Supplier’s (but not the Customer’s) rights in this condition 14 shall remain in effect.
- The Supplier may appropriate payments by the Customer to such Equipment as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any time.
15. Inspection and testing of Equipment
15.1 The Supplier may:
- test and inspect the Equipment on delivery to ensure that it complies with the requirements of the Contract; and
- if so requested by the Customer, give the Customer reasonable advance notice of such tests (which the Customer shall be entitled to attend).
16. Export terms
16.1 Where the Equipment is supplied for export from the United Kingdom, the provisions of this condition 16 shall (subject to any contrary terms agreed in writing between the Customer and the Supplier) override any other provision of these conditions.
16.2 The Customer shall be responsible for complying with any legislation governing:
- the importation of the Equipment into the country of destination; and
- the export and re-export of the Equipment,
and shall be responsible for the payment of any duties on it.
- Unless otherwise agreed in writing between the Customer and the Supplier, the Equipment shall be delivered free on board the air or sea port of shipment and the Supplier shall be under no obligation to give notice under section 32(3 ) of the Sale of Goods Act 1979.
- The Supplier shall be responsible for arranging for the testing and inspection of the Equipment at the Supplier’s premises before shipment.
- Payment of all amounts due to the Supplier shall be payable in advance in cleared funds prior to shipment. The Customer shall pay the price for the Equipment in pounds sterling.
17.1 The Supplier warrants to the Customer that the Equipment is free from defects of workmanship and materials. The Supplier undertakes (subject to the remainder of this condition 17), at its option, to repair or replace Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within 30 days of delivery and installation. The Supplier shall use reasonable endeavours to ensure that the benefit of the manufacturers warranty is passed on to the Customer.
17.2 The Supplier shall not in any circumstances be liable for a breach of the warranty contained in condition 17.1 unless:
- the Customer gives written notice of the defect to the Supplier within seven days of the time when the Customer discovers or ought to have discovered the defect; and
- after receiving the notice, the Supplier is given a reasonable opportunity of examining such Equipment and the Customer (if asked to do so by the Supplier) returns such Equipment to the Supplier’s place of business at the Supplier’s cost for the examination to take place there.
17.3 The Supplier shall not in any circumstances be liable for a breach of the warranty in condition 17.1 if:
- the Customer makes any use of Equipment in respect of which it has given written notice under condition 17.2(a); or
- 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 Equipment or (if there are none) good trade practice; or
- the Customer alters or repairs the relevant Equipment without the written consent of the Supplier.
17.4 The Supplier shall not in any circumstances be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application. The Supplier shall not in any circumstances be liable or obliged to pro vide Replacement Equipment whilst the Equipments is being inspected or repaired.
18.1 The Supplier shall not in any circumstances be liable for any non-delivery of Equipment (even if caused by the Supplier’s negligence) unless the Customer notifies the Supplier in writing of the failure to deliver within 48 hours after the scheduled delivery date.
18.2 Any liability of the Supplier for non-delivery of the Equipment shall in all circumstances be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment.
18.3 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under condition 23), the Customer shall in all circumstances be liable to pay to the Supplier all reasonable costs, charges or losses sustained by it as a result, subject to the Supplier notifying the Customer in writing of any such claim it might have against the Customer in this respect.
18.4 In the event of any claim by the Customer under the warranty given in condition 17.1, the Customer shall notify the Supplier in writing of the alleged defect. The Supplier shall have the option of testing or inspecting the Equipment at its current location or moving it to the Supplier’s premises (or those of its agent or sub-contractor) at the cost of the Supplier. If the Customer’s claim is subsequently found by the Supplier to be outside the scope or duration of the warranty in condition 17, the costs of transportation of the Equipment, investigation and repair shall be borne by the Customer.
19. Intellectual Property Rights Equipment
19.1 If the Supplier manufactures the Equipment, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified the Supplier against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by the Supplier in connection with, or paid or agreed to be paid by the Supplier in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from the Supplier’s use of the Customer’s specification or such other information. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Supplier.
19.2 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment are and shall remain the sole property of the Supplier or (as the case may be) third party rights, owner.
19.3 The Supplier shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Supplier.
19.4 The Supplier’s Intellectual Property Rights in and relating to the Equipment shall remain the exclusive property of the Supplier, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
19.5 In relation to the Software:
- the Customer acknowledges that it is buying only the media on which the software is recorded or a licence to use the software, and the accompanying user manuals;
- nothing contained in these conditions shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and
20. Confidentiality and Supplier’s property
20.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the
Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
20.2 All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
20.3 This condition 20 shall survive termination of the Contract, however arising.
21. Limitation of liability Equipment & Services
21.1 The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
- any breach of the Contract howsoever arising;
- any use made by the Customer of the Services, the Deliverables or any part of them; and
- any breach of the Contract howsoever arising
- any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with the Contract.
- All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- Nothing in these conditions excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or (b) for fraud or fraudulent misrepresentation.
21.4 Subject to condition 21.2 and condition 21.3:
- the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
- loss of profits; or
- loss of business; or
- depletion of goodwill or similar losses; or
- loss of anticipated savings; or
- loss of goods; or
- loss of contract; or
- loss of use; or
- loss or corruption of data or information; or
- any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
- the Supplier’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid for the Goods and / or Services.
22.1 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
- the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 22.1(d) to condition 22.1(j) (inclusive);
22.2 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
23. Force majeure
The Supplier shall not in any circumstances have any liability to the Customer under the Contract if it is prevented from, or delayed in, performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.
25. Rights and remedies
The rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
26.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or partprovision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
26.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
27. Entire agreement
27.1 This Agreement 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.
27.2 Each party acknowledges that in entering into this Agreement 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 this Agreement.
27.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
28.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
28.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
29. No partnership or agency
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including without limitation the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
30. Third party rights
No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
31.1 Any notice or other communication given to a party under or in connection with this contract shall be in writing and shall be: (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or (b) sent by fax to its main fax number.
31.2 Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt or 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 at the time recorded by the delivery service.
- if sent by fax, at 9.00 am on the next Business Day after transmission.
31.3 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. For the purposes of this clause, “writing” shall not include e-mail.
32. Governing law
The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation noncontractual disputes or claims) are 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 arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).