DANTECH UK LIMITED – GENERAL TERMS AND CONDITIONS OF SALE
The customer’s attention is drawn in particular to the provisions of condition 12.
1. Definitions and Interpretation
1.1 Definitions In these Conditions, the following definitions apply:
Applicable Law means any and all applicable laws, regulations and industry standards or guidance and any binding judgement of a relevant court of law;
Business Day a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Charges the charges payable by the Customer for the supply of the Services in accordance with condition 10.2;
Commencement Date has the meaning given in condition 2.3;
Conditions the terms and conditions set out in this document as amended from time to time in accordance with condition 16.3;
Confidential Information any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to the business, affairs, customers, suppliers, employees, affiliates, products and/or methods of the Supplier and disclosed to or otherwise obtained by the Customer in connection with the Contract;
Contract the contract between the Supplier and the Customer for the supply of Goods and/or Services which incorporates these Conditions, the Order Acceptance , the Goods Specification and the
Service Specification (where applicable);
Customer the person or firm who purchases Goods and/or Services from the Supplier;
Customer’s Purchase Order the Customer’s order for the supply of the Goods and/or Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of the Supplier’s quotation, as the case may be;
Deliverables all documents, products and materials developed by the Supplier or the Supplier Personnel as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts);
Estimate The Supplier’s written estimate in respect of Goods and or Services
Force Majeure Event has the meaning given in condition 15;
Goods the goods (or any part of them) set out or referred to in the Order Acceptance;
Goods Specification the specification for the Goods that is set out in the Estimate or the Order Acceptance;
Insolvency Event has the meaning given in conditions 14.2(b) and 14.2(c);
Intellectual Property Rights patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, 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 Acceptance the written Order Acceptance provided by the Supplier which is subject to these Conditions;
Price the price payable by the Customer for the supply of the Goods in accordance with condition 10.1;
Services the services, including any On Site Services and any Deliverables, to be provided by the Supplier under the Contract;
Service Specification the specification for the Services that is set out or referred to in the Order Acceptance;
Site Services Any services to be undertaken at the Customer’s premises as provided for in Clause 8 of these Conditions
Supplier DANTECH UK LIMITED (registered in England and Wales with company number 03918734);
Supplier Materials all materials, equipment and tools, drawings, specifications and data supplied or made available by the Supplier to the Customer; and
Supplier Personnel the personnel including subcontractors engaged by the Supplier in the performance of the Contract.
1.2 Interpretation In these Conditions, the following rules apply:
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended, reenacted or superseded and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Customer’s Purchase Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Customer’s Purchase Order and any applicable Goods Specification and/or Service Specification submitted by the Customer are complete and accurate.
2.3 The Customer’s Purchase Order shall only be deemed to be accepted when the Supplier issues a written Order Acceptance, which is subject to these terms and conditions, at which point the Contract shall come into existence (Commencement Date). Any cancellation or change of specification by the Customer prior to manufacture must be approved by the Supplier and in such circumstances, the Supplier reserves the right to charge the Customer cancellation charges of up to 30% of the value of the Contract. Where Goods are the subject of an Order Acceptance it is deemed that the Customer has satisfied itself prior to the purchase and any subsequent agreements that the Goods were indeed required and the Supplier is not responsible for compensating the Customer. Where a Contract is substituted and/or changed, amendments to the prices will be advised before any work is undertaken.
2.4 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 Any quotation or estimate given by the Supplier is subject to final confirmation in the Order Acceptance.
2.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained or referred to in any document that is inconsistent with these Conditions.
3.1 The Goods are described goods.
3.2 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
3.3 Final system layouts and equipment may be mutually developed and agreed in writing between the Customer and the Supplier. Once the final layout has been agreed, subsequent modifications or changes to the Goods and to the final delivery date for the Goods shall be subject to additional charges to be determined by the Supplier and paid for by the Customer and to be accepted in writing before the work commences.
4. Delivery of the Goods
4.1 Delivery of the Goods shall be made in accordance with the relevant INCOTERM set out in the Order Acceptance or the Estimate as the case may be.
4.2 The Customer shall provide all necessary delivery instructions, documents, licences, authorisations, labour and equipment to enable the Goods to be safely unloaded at the location of delivery and shall ensure that each delivery of Goods is signed for by an authorised representative.
[Delivery of the Goods shall be completed on the Goods’ arrival at the location of delivery.]
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready or the Supplier is unable to deliver them due to the Customer’s breach of condition 4.2 then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 09:00 on the third Business Day after 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).
4.6 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, 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.
4.7 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 the Goods and Warranty
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (“Warranty Period”), the Goods shall:
(a) conform in all material respects with their description and the Goods Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be fit for any purpose held out by the Supplier.
This warranty is provided on the basis the Goods are not operated for s more than 250 days in such 12 month period and for no more than 8 hours per day of operation following delivery. Subject to condition 5.2, if:
(d) 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 condition 5.1;
(e) the Supplier is given a reasonable opportunity of examining such Goods; and
(f) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier may, at its option, repair or replace the defective Goods without charge (except for freight and/or roundtrip travel and substantive charges by a service technician from the factory to the Customer’s plant) or any part to be found defective under normal use and service within the Warranty Period.
5.2 The Supplier shall not be liable for any Goods’ failure to comply with the warranty set out in condition 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with condition 0;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and 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 Goods 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 fair wear and tear, improper maintenance, wilful damage, negligence, misuse, adjustments or alterations other than those specified in any operating and maintenance manual or abnormal storage or working conditions;
(f) the Goods differ from their description or the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
(g) the Customer fails to abide by proper hygiene and cleaning requirements in respect of the Goods.
5.3 The Supplier retains the right to reject any claim if it believes the Goods have not been installed, commissioned or used as is stated in the manual. The Supplier also retains the right to inspect the Goods in the event of a claim and gather any evidence if necessary. The procedure for any claim is to order the replacement parts with an official purchase order and return the faulty part to the Supplier for evaluation. If the claim is valid, a credit may be issued in whole or in part allowing for fair wear and tear. Parts returned later than 30 days after the 12 month period are ‘out of time’. Labour, travelling and living costs are not covered by the warranty and are invoiced at the current rates.
5.4 Except as provided in this condition 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in condition 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 Risk in the Goods shall pass to the Customer in accordance with the relevant INCOTERM set out in the Order Acceptance or the Estimate as the case may be,.
6.2 Title to the Goods shall pass to the Customer at the earlier of:
(a) the Supplier receiving payment in full (in cash or cleared funds) for:
(i) the Goods; and
(ii) 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
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods for which it has not paid 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 from the date of delivery;
(d) obtain an endorsement of the Supplier’s interest in the Goods on its insurance policy, subject to the insurer being willing to make the endorsement, and on request allow the Supplier to inspect the insurance policy;
(e) notify the Supplier immediately if it becomes subject to an Insolvency Event;
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time; and
(g) permit or procure permission for the Supplier, its agents and authorised representatives to enter any premises of the Customer or of any third party where the Goods are stored in order to inspect whether the Customer is in compliance with this condition 6.3 and/or recover the Goods.
6.4 The Customer may not resell the Goods before the Supplier receives payment for the Goods in full.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to an Insolvency Event, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer must immediately notify the Supplier of the event and;
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession ; 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. Performance of Services
7.1 The Supplier shall from the date specified in the Order Acceptance and for the duration of the Contract provide the Services to the Customer in accordance with the Contract in all material respects.
7.2 The Supplier shall use reasonable endeavours to perform the Services by the date(s) specified in the Order Acceptance, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
7.3 The Supplier warrants that it shall provide the Services with reasonable care and skill. 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.
8. Site Services
8.1 Where Site Services have been included for or quoted separately it is upon the assumption that such services can be carried out by the Supplier without any interference or obstruction.
8.2 Free and unimpeded access must be available to the Supplier’s Personnel as required to complete the Site Services.
8.3 Any Site Services not specified in the Order Acceptance or any schedule of work to be carried out must be done beforehand when possible. The Supplier will not be liable for any delays caused by third parties and reserves the right to charge waiting time at the appropriate rate and any expenses incurred by the delay.
8.4 Every effort is made to ensure in the Supplier’s estimate that appropriate specialist tools and lifting equipment are included; however, should it arise that additional specialist equipment is required for the safe completion of a job whether the final cost has been agreed or not, or where due to a change in site circumstances then the costs for any specialist equipment will be applied to the final invoice to the Customer to be paid for under the terms of the Contract.
9. Customer obligations
9.1 The Customer shall:
(a) ensure that the terms of the Order Acceptance and (if submitted by the Customer) the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Goods and any Services;
(c) provide the Supplier and the Supplier Personnel with access to the Customer’s premises, office accommodation and other facilities reasonably required by the Supplier for the purpose of providing any Services;
(d) provide such information to the Supplier as the Supplier may reasonably request for the purpose of providing the Services and ensure that such information is accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions, local approvals and consents which may be required for the receipt and use of the Goods and/or Services before the Commencement Date;
(f) prepare the Customer’s premises for the supply of the Services;
(g) keep and maintain any 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;
(j) (h) comply with all Applicable Law with respect to its activities under the Contract; provide adequate protection of all surfaces , walls and floors ,and
(k) provide adequate personal protection equipment for Supplier’s Personnel to enable the Services to take place
9.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend provision of the Goods and/or performance of the Services until the Customer remedies the Customer Default;
(b) the Supplier shall not be liable for any 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 condition 9.2; and
(c) the Customer shall reimburse the Supplier on demand for any losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
10. Charges and payment
10.1 The Price for the Goods shall be the price set out in the Order Acceptance, or, if no price is quoted, the price set out in the Supplier’s published price list in force on the date of delivery. The Price is exclusive of:
(a) the costs and charges of packaging, insurance and transport of the Goods, which the Customer shall pay to the Supplier; and
(b) amounts in respect of value added tax (VAT), or any local taxes ,levies ,tariffs or duties which the Customer shall pay to the Supplier at the prevailing rate, (and in the case of VAT, subject to receipt of a valid VAT invoice.
10.2 The Charges for the Services and any Site Services shall be the charges set out in the Order Acceptance.
10.3 Where not set out in the Order Acceptance, the Charges for the Services and any Site Services shall be calculated on a time and materials basis in accordance with this condition 10.3:
(a) the Charges shall be calculated in accordance with the Supplier’s standard daily fee rates, established from time to time;
(b) the Supplier’s standard daily fee rates and call out charges are calculated on the basis of an eight-hour day from 08:00 to 16:00]] worked on Business Days (Working Hours);
(c) the Supplier shall be entitled to charge an overtime rate of 150% of the standard daily fee rate on a prorata basis for each part day or for any time worked by any Supplier Personnel outside Working Hours; and
(d) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the Supplier Personnel in connection with the Services, including travelling expenses, hotel costs, subsistence and any associated expenses, the cost of services provided by third parties and materials.
10.4 The Charges exclude amounts in respect of UK value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice.
10.5 The Supplier reserves the right to, by giving notice to the Customer at any time up to 30 Business Days before delivery, increase the Price to reflect any increase in the cost of the Goods that is due to:
(i) any factor beyond the Supplier’s control (including foreign exchange 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 date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
10.6 The Supplier may invoice the Customer for the:
(a) Deposit being the agreed percentage of the Price immediately upon receipt of the Customer’s Purchase Order;
(b) Goods plus VAT at the prevailing rate (if applicable) as soon as the Goods are available for despatch; and(c) Charges plus VAT at the prevailing rate (if applicable) on or at any time after the completion of the Services.
10.7 All Prices and Charges may be subject to exchange rate variation if applicable at the date payments fall due.
10.8 Unless stated otherwise in the Order Acceptance or by written agreement between the parties the Customer shall pay each invoice in full and in cleared funds within 30 days from the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
10.9 Payment shall fall due in accordance with condition 10.8 and the Supplier shall accordingly be entitled to sue for the price once it is due, despite the fact that title to the Goods has not passed to the Customer.
10.10 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. The Customer shall indemnify, keep indemnified and hold harmless the Supplier in respect of any loss, liability, damage, costs and expenses (including, without limitation, legal costs) suffered or incurred by the Supplier in recovering any unpaid and overdue sums.
10.11 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11. Intellectual Property Rights
11.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Goods and the Supplier Materials are and shall remain the sole property of the Supplier or (as the case may be) any third party rights owner.
11.2 All Intellectual Property Rights arising in the performance of the Services (including the Deliverables) shall be owned by the Supplier.
11.3 The Customer may use the Deliverables only for the purpose of receiving the Services. The Customer shall not supply the Deliverables to any third party or use the Services or the Deliverables to provide a service to any third party.
11.4 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify, keep indemnified and hold harmless the Supplier from and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit and loss of reputation whether arising in tort (including negligence), in contract or otherwise 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 as a result of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This condition 11.4 shall survive termination of the Contract.
11.5 The Supplier may inform third parties that it provides or has provided the Goods to the Customer. The Customer licenses the Supplier to use its name and logo(s) for this sole purpose.
12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its Supplier Personnel (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1979;
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(e) defective products under the Consumer Protection Act 1987; or
(f) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
12.2 Subject to condition 12.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, for:
(i) any indirect, special, consequential or pure economic loss or damage;
(ii) any loss of profits, anticipated profits, revenue or business opportunities; or
(iii) damage to goodwill
(in each case arising as a direct or indirect result of the relevant claim); and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the Price and the Charges.
13.1 Subject to condition 13.2, the Customer shall:
(a) use Confidential Information solely for the performance of the Contract; and
(b) keep Confidential Information strictly confidential and not, without the Supplier’s prior written consent, disclose it to any other person.
13.2 The Customer may disclose the Supplier’s Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Supplier’s rights or carrying out its obligations under or in connection with the Contract and the shall ensure that such persons comply with this condition 13.2;
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
(c) if such information is public knowledge or already known to the at the time of disclosure or subsequently becomes public knowledge other than by breach of any duty of confidentiality (contractual or otherwise).
13.3 This condition 13 shall survive termination of the Contract.
14.1 If the Customer terminates the Contract under condition 14.2 it shall pay the Supplier fair and reasonable compensation for any work in progress on the Services at the time of termination, including compensation for loss of anticipated profits and consequential loss.
14.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
(a) commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing to do so;
(b) (being a body corporate) is declared or becomes insolvent, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application, the entering into of a board resolution or the giving of any notice) by it or by any other person in respect of any of these circumstances (an Insolvency Event);
(c) (being an individual) is declared bankrupt, enters into any composition or arrangement with his creditors, has a receiver appointed to any of his assets, or ceases to carry on business, or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application or the giving of any notice) by him or any other person in respect of any of these circumstances) (also an Insolvency Event)) (or, the other party being a partnership, has a partner to whom any Insolvency Event applies);
(d) (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; or
(e) suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
14.3 Without limiting its other rights or remedies, the Supplier may:
(a) terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and fails to pay all outstanding amounts within 30 days after being given written notice to do so; or
(b) suspend provision of the Goods and/or Services under the Contract or any other contract between the Supplier and the Customer if the Customer becomes subject to an Insolvency Event or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
14.4 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which the Customer shall pay immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, 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 other than receiving and using the Services;
(c) the parties’ rights and remedies that have accrued as at termination shall be unaffected; and
(d) conditions that expressly or by implication survive termination of the Contract shall continue in full force and effect.
15. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract (other than an obligation to make payments due under these conditions) to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event which hinders, delays or prevents performance of a party’s obligations and which is either beyond that party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
16.1 Assignment subcontracting and other dealings
(a) The Supplier may at any time assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of its rights or obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of its rights or obligations under the Contract without the Supplier’s written consent.
16.2 Entire agreement The Contract (incorporating these Conditions) 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. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
16.3 Variation The Supplier may at any time by written notice to the Customer alter the Contract as to: (i) the quantity of the Goods; (ii) the Goods Specification; (iii) the method of packing and delivery of the Goods; (iv) the location of delivery; (v) the date for delivery; (vi) the Service Specification; and/or (vii) the date for the performance of the Services
16.4 The Customer shall not vary the Contract, the Goods or the Services except as directed in writing by the Supplier or with the Supplier’s prior written consent.
16.5 Waiver Except as set out in condition 2.6, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of or 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.
16.6 Severance If any provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision shall be deemed deleted. Any modification or deletion of a provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be sent by email or delivered by hand or by pre-paid first-class post or by a signed-for next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(b) Any notice shall be deemed to have been received: (i) if sent by email at the time of transmission (i) if delivered by hand, on signature of a delivery receipt or, if not signed for, at the time the notice is left at the correct address; (ii) if sent by pre-paid first-class post, at 09:00 on the second Business Day after posting; and (iii) if sent by a signed-for next working day delivery service, at the time recorded by the delivery service.
(c) This condition 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.
16.8 Third party rights No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
16.9 Relationship Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Supplier and the Customer, constitute either party the agent of the other party or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.10 Governing law The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the law of England and Wales. Jurisdiction The Customer 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 the Contract or its subject matter or formation (including non-contractual disputes or claims). Nothing in this condition shall limit the Supplier’s right to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdictions.
Arbitration / Mediation
1) Arbitration ]”Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.
The number of arbitrators shall be [one/three].
The seat, or legal place, of arbitration shall be [City and/or Country].
The language to be used in the arbitral proceedings shall be English.
The governing law of the contract shall be the substantive law of England and Wales.”2) Mediation and Arbitration
“In the event of a dispute arising out of or relating to this contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation in accordance with the LCIA Mediation Rules, which Rules are deemed to be incorporated by reference into this clause.
If the dispute is not settled by mediation within [ ] days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.
The language to be used in the mediation and in the arbitration shall be English.
The governing law of the contract shall be the substantive law of England and Wales.
In any arbitration commenced pursuant to this clause,
(i) the number of arbitrators shall be [one/three]; and
(ii) the seat, or legal place, of arbitration shall be [City and/or Country].