Terms and Conditions
1. INTERPRETATION
Definitions to apply in this agreement:
Contract: these terms and conditions as amended from time to time in accordance with clause 2.7. the contract constituted by the Written Proposal and theseConditions, entered into between the Supplier and the Customer for the supply of the Products and/or the Services.
Core Hours: between 9am and 5pm Monday to Friday but excluding public or bank holidays.
Currency: UK Pounds Sterling or such other currency as set out in the Written Proposal.
Customer: the person, firm or company (details of which are set out in the Written Proposal) who directly purchases Products and/or Services from the Supplier, whether for its own benefit, the benefit of third party End User or otherwise.
Default Event: means any of the events described in clauses 15.2.1 – 15.2.9.
Data Protection Legislation Delivery / Delivered: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long and to the extent that the law of the European Union has legal effect in the UK). means the actual physical delivery of the Products to the Customer or the Customer’s agent or carrier or the End User.
Delivery Point: the place, delivery agent or carrier specified in the Written Proposal.
End User: the person, firm or company as more fully described in the Written Proposal or nominated by the Customer and who is the end user of the Products and/or the Services. Intellectual Property
ng>Rights: all patents, rights to inventions, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other.intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order Confirmation: the Supplier’s written confirmation of the Customer’s order for Products and/or Services and the coming into being of the Contract.
Party/ies: the Customer and the Supplier Price: the price to be charged by the Supplier and to be paid by the Customer for the Products and the provision of the Services as set out in the Written Proposal. Products: the goods to be supplied by the Supplier to the Customer for installation and use at the Customer and / or End User’s premises (as relevant) as more fully set out in the Written Proposal.
Services: the services, which are ancillary to the supply of the Products, to be provided by the Supplier as more fully set out in the Written Proposal.
Service Delivery Point: the place specified in the Written Proposal where the Services are to be provided
Supplier: Modulek Ltd whose registered office is 19 Bessemer Close, Ebblake Industrial Estate, Verwood, Dorset BH31 6AZ..
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax. Written Proposal: a written proposal for the provision of the Products and/or Services issued by the Supplier, which sets out details of the Products and/or the Services to be supplied pursuant to a Contract and the Delivery costs and sets out any assumptions and/or exclusions applicable to the supply of the Products and/or the Services upon which the Price is based.
Contract: these terms and conditions as amended from time to time in accordance with clause 2.7. the contract constituted by the Written Proposal and theseConditions, entered into between the Supplier and the Customer for the supply of the Products and/or the Services.
Core Hours: between 9am and 5pm Monday to Friday but excluding public or bank holidays.
Currency: UK Pounds Sterling or such other currency as set out in the Written Proposal.
Customer: the person, firm or company (details of which are set out in the Written Proposal) who directly purchases Products and/or Services from the Supplier, whether for its own benefit, the benefit of third party End User or otherwise.
Default Event: means any of the events described in clauses 15.2.1 – 15.2.9.
Data Protection Legislation Delivery / Delivered: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long and to the extent that the law of the European Union has legal effect in the UK). means the actual physical delivery of the Products to the Customer or the Customer’s agent or carrier or the End User.
Delivery Point: the place, delivery agent or carrier specified in the Written Proposal.
End User: the person, firm or company as more fully described in the Written Proposal or nominated by the Customer and who is the end user of the Products and/or the Services. Intellectual Property
ng>Rights: all patents, rights to inventions, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other.intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order Confirmation: the Supplier’s written confirmation of the Customer’s order for Products and/or Services and the coming into being of the Contract.
Party/ies: the Customer and the Supplier Price: the price to be charged by the Supplier and to be paid by the Customer for the Products and the provision of the Services as set out in the Written Proposal. Products: the goods to be supplied by the Supplier to the Customer for installation and use at the Customer and / or End User’s premises (as relevant) as more fully set out in the Written Proposal.
Services: the services, which are ancillary to the supply of the Products, to be provided by the Supplier as more fully set out in the Written Proposal.
Service Delivery Point: the place specified in the Written Proposal where the Services are to be provided
Supplier: Modulek Ltd whose registered office is 19 Bessemer Close, Ebblake Industrial Estate, Verwood, Dorset BH31 6AZ..
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax. Written Proposal: a written proposal for the provision of the Products and/or Services issued by the Supplier, which sets out details of the Products and/or the Services to be supplied pursuant to a Contract and the Delivery costs and sets out any assumptions and/or exclusions applicable to the supply of the Products and/or the Services upon which the Price is based.
2. CONTRACTING PROCESS
A Contract shall be subject only to the provisions of these
Conditions as read in conjunction with the Written Proposal to the
exclusion of all other terms and conditions (including any terms or
conditions which the Customer purports to apply under any
purchase order, confirmation of order, specification or other
document, whether communicated to the Supplier before or after
the date on which the Customer executes the Written Proposal).
By signing and returning the Written Proposal to the Supplier, the
Customer shall be taken to have offered to purchase the Products
and / or the Services on the terms of these Conditions and the
Written Proposal. If the content of these Conditions conflicts with that of the Written
Proposal, then the conflicting provision of the Written Proposal
shall prevail.
The Supplier shall communicate acceptance of the Customer’s
offer referred to in clause 2.2 above by signing and delivering an
Order Confirmation to the Customer. Until the Supplier has
communicated an Order Confirmation to the Customer no Contract
shall be taken to have come into being.
If a Customer signs and returns the Written Proposal or otherwise
accepts it, or accepts Delivery of the Products and/or the provision
of the Services or uses the Products, then the Customer shall be
bound by the provisions of these Conditions and the Written
Proposal.
Where the Supplier has issued an Order Confirmation in
accordance with clause 2.4 above then, the Customer shall remain
bound by the Contract notwithstanding the fact that it may be
required, due to the Customer’s internal administrative protocols,
to issue a purchase order for the purchase of the Products and/or
the Services.
Except as set out in these Conditions, no variation to a Contract or
these Conditions or any representations made in respect of the
Products and/or Services shall be effective unless expressly
agreed in writing and signed by an authorised representative of
each Party.
The Supplier’s obligations under the Contract shall be as set out in
these Conditions and the Written Proposal only. The Customer
agrees that it has not relied on and that the Supplier shall not be
liable for any statement, promise, warranty or representation not
set out in the Contract (including but not limited to those made or
given by or on behalf of the Supplier, such as specifications,
particulars of weight, dimensions, sales proposals, quotations,
statements, representations, descriptions or illustrations contained
in quotations, sales and marketing material, catalogues and
publicity material, all of which are only intended to convey only a
general idea of the Products and Services mentioned). Nothing in
this clause shall exclude or limit the Supplier’s liability for fraudulent
misrepresentation.
The Supplier may at its sole and absolute discretion be entitled to
amend any quotation or Written Proposal until a Contract has been
concluded with that quotation confirmed on the Written Proposal.
Any typographical, clerical or other error or omission in any
Contract shall be subject to correction at the sole discretion of the
Supplier without any liability on the part of the Supplier.
No Contract may be cancelled by the Customer without the prior
written consent of the Supplier. Without limiting any other rights of
the Supplier, the Supplier reserves the right to charge the
Customer for all losses and expenses incurred as a consequence
of any cancelled Contract.
The Customer shall provide the Supplier with such information as
it may reasonably require in order to supply the Products and/or
Services, and ensure that such information is accurate in all
material respects.
The Customer acknowledges that the Supplier’s proposal for the
provision of the Products and/or Services has been given on the
basis of the assumptions and exclusions set out in the Written
Proposal. If (a) any of these assumptions are found to be not the
case and/or (b) any of these excluded items are subsequently
required to be undertaken (or where it is no longer practical or
possible for any such excluded items to be undertaken but other
measures, works and/or Services are subsequently required to be
undertaken as a consequence), then the Supplier reserves the
right to increase the Price and extend the estimated time for
Delivery and/or for the provision of the Services.
3. DELIVERY OF PRODUCTS
The quantity, description, price and component parts of the
Products and the cost of the Delivery thereof (in the case where
there is to be a charge for Delivery) shall be as set out in the Written
Proposal.
Delivery shall take place during Core Hours at the Delivery Point
unless otherwise specified in the Written Proposal.
Any dates specified by the Supplier for Delivery are an estimate
only and any attempt to make the time of Delivery the essence of
the Contract by notice to that effect shall be invalid.
The Supplier shall not be liable to the Customer for any loss
suffered by the Customer (whether direct, indirect or consequential) arising from a delay in Delivery provided such delay
was not caused by the wilful misconduct or default of the Supplier.
Where the Products are to be delivered or the Services are to be
supplied in instalments then any delay in Delivery of or the
performance of any one instalment shall not entitle the Customer
to cancel or to repudiate the Contract as a whole.
If the Customer does not accept Delivery of the Products then the
Customer shall pay the Supplier any additional costs that the
Supplier may incur, including but not limited to all storage costs.
Unless otherwise specified in the Written Proposal, the Customer
shall be responsible for the unloading and loading of the Products
at the Delivery Point and any personnel supplied by the Supplier
for such unloading and/or loading shall be deemed to be under the
direction and control of the Customer. Such personnel shall for all
purposes in connection with or arising out of their employment in
the unloading and / or loading of the Products be regarded as the
servants or agents of the Customer who alone shall be responsible
for all claims arising in connection with the unloading and/or loading
of the Products by or with the assistance of the personnel.
Products should be inspected by the Customer as soon as they are
Delivered. The Customer shall indicate any damage to the
Products or packaging on the carrier’s delivery note at the time of
Delivery and the contents and packaging of the Products must be
retained for inspection as proof of damage, failing which the
Supplier shall have no liability to the Customer for such damage.
The Customer shall:
3.9.1. provide the Supplier, its employees, agents,
consultants and subcontractors, with safe and suitable
access to the Customer’s premises and/or Delivery
Point or other facilities as the Supplier may reasonably
require, including safe and suitable access for the
Supplier’s or the Supplier’s agent’s vehicles between
the public highway and the actual point of delivery;
3.9.2. ensure that if, to effect Delivery, the Supplier’s vehicle
is required to leave the public highway, the surface of
any drive, access road or similar (and any man-lids or
ducts) is capable of accepting heavy goods vehicles
and there are no obstructions (e.g. trees).;
3.9.3. obtain and maintain all necessary licences,
permissions and consents for the use and /or storage
of the Products and which may be required before the
date on which the Services are to start or the Products
are to be supplied; and
3.9.4. comply with the Supplier’s reasonable and lawful
instructions which may be communicated to the
Customer and which are relevant to the Products,
Delivery and / or the use of any Products and / or
equipment supplied by the Supplier.
The Customer shall be responsible for compliance with all relevant
regulations issued by the Government or local authorities; including
regulations under the Factories Act, Health and Safety Act and any
other relevant statute and observance of the Road Traffic Act
should it apply.
4. RISK & RETENTION OF TITLE
Risk in the Products shall pass to the Customer at the Delivery
Point.
Title to the Products shall not pass to the Customer until the
Supplier has received in full (in cash or cleared funds) all sums due
to it in respect of the Products, the Services or under or arising from
any other contract or liability owed by the Customer to the Supplier
whether under a Contract or otherwise.
Where title to the Products has not yet passed to the Customer
then the Customer’s right to possession of the Products shall
terminate immediately upon the occurrence of a Default Event and,
to the extent that it is physically possible to do so, the Customer
shall immediately return the Products or cause the Products to be
returned to the Supplier.
The Customer grants the Supplier, its agents and employees an
irrevocable licence at any time to enter any premises where the
Products are or may be stored in order to inspect them, or, where
the Customer’s right to possession has terminated, to recover
them.
The Supplier shall be entitled to recover payment for the Products
notwithstanding that title in the Products has not passed to the
Customer. If, notwithstanding the provisions of clause 4.2, the Customer
purports to sell the Products to a third party or End User before the
title to the Products passes to the Customer then the Supplier shall,
without prejudice to its rights to recover damages, be beneficially
entitled to all of the proceeds of that sale received by the Customer
from the third party or End User.
On termination of a Contract, howsoever caused, the Supplier’s
rights contained in this clause 4 shall remain in effect.
5. THE SERVICES
The Services shall be provided to either the Customer or the End
User, as the case may be and as confirmed in the Written Proposal.
Any dates for the provision of the Services shall be estimates only
and the time for the provision of the Services shall not be of the
essence.
The Customer shall provide or otherwise procure that:
5.3.1. the Supplier on reasonable notice is granted access to
the premises, equipment, infrastructure and staff of
the Customer and / or End User as may be reasonably
required for the purposes of performing the Services;
5.3.2. the Supplier is informed of all health and safety rules
and regulations and any other reasonable security
requirements applicable to the Supplier in the
performance of the Services; and
5.3.3. it complies with the reasonable instructions of the
Supplier as may be relevant to the Services.
The Supplier reserves the right to engage any approved subcontractor to fulfil the Services on the Supplier’s behalf. The
Supplier shall have the sole discretion to approve a sub-contractor.
Unless otherwise agreed in writing the Services shall be performed
at the Service Delivery Point.
The Supplier shall be entitled to charge the Customer for any
abortive installation or commissioning of the Products where the
Customer is the cause of the delay in the fulfilment of the Services.
Upon fulfilment of the Services, and provided that the Product
operates materially in accordance with the specifications contained
in the Written Proposal, the Supplier shall notify the Customer or
the End User (if applicable) of that fact
6. CHANGE CONTROL
If the Customer wishes to change the scope or execution of the
Services, it shall submit details of the requested change to the
Supplier who shall, within a reasonable time, provide a written
estimate to the Customer of:
6.1.1. the likely time required to implement the change;
6.1.2. any necessary variations to the Supplier’s charges
arising from the change; and
6.1.3. any other impact of the change on the Contract.
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 the necessary variations to its charges, the Service,
and any other relevant terms of the Contract to take account of the
change and these Conditions and/or the Contract have been varied
in accordance with clause 2.7.
Notwithstanding clause 6.2, the Supplier may on notice to the
Customer cancel the Contract or change the Products and/or the
Services or increase its charges for the Products and/or the
Services in order to comply with any applicable safety or statutory
requirements, or where the provision of the Products and/or the
Services are not feasible due to a technical or commercial reason,
but provided that such changes do not materially affect the nature
and scope of the Products and/or the Services.
7. PRICE & PAYMENT
All sums payable under these Conditions or any Contract are
exclusive of any VAT (if applicable) chargeable on the supplies for
which such sums (or any part of them) are the whole or part of the
consideration for VAT purposes.
All taxes, charges, levies, assessments and other fees of any kind
imposed on the purchase of the Products and/or Services and the
Delivery thereof under these Conditions or any Contract shall be
the responsibility of, and for the account of, the Customer.
The Price shall be paid without deduction, set off, counterclaim,
discount, abatement or withholding whatsoever in the Currency in
full upon (i) notification being received from the Supplier that the Product is ready for despatch and (ii) the Supplier’s invoice being
received by the Customer.
The Supplier shall invoice the Customer and the Customer shall
pay the Price in accordance with the payment terms set out in the
Written Proposal and time for payment of the Price shall be the
essence of these Conditions or any Contract.
If the Customer requests any variation to the Products and/or the
Services and/or clause 2.13 applies, then the Supplier reserves the
right to increase the Price.
The Supplier reserves the right at its sole discretion to terminate
the Contract or withhold Delivery or to suspend or terminate the
provision of the Services if the Customer fails to pay the Price or
any part thereof on the due date for payment and upon such
suspension or termination, the full unpaid balance of the Price shall
immediately fall due for payment.
Interest on late payments shall be charged by the Supplier at the
rate of 8% above the base lending rate from time to time of the
Bank of England, accruing on a daily basis and being compounded
quarterly until payment is made, whether before or after any
judgement.
All invoices sent under the Contract shall be addressed to the
Customer’s address as set out in the Written Proposal and may be
sent in .pdf format by electronic mail.
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.
The Customer shall indemnify the Supplier against and shall
reimburse the Supplier on demand for all liabilities, costs,
expenses, damages and losses (including but not limited to any
direct, indirect or consequential losses, loss of profit, debt collection
costs and all interest, penalties and legal costs (calculated on a full
indemnity basis) and all other reasonable professional costs and
expenses) suffered or incurred by the Supplier and which may arise
out of or in connection with the Customer’s breach or nonperformance of the Customer’s obligations under the Contract
(including but not limited to the duty to pay all amounts due under
the Contract) and the Supplier’s enforcement of the Contract.
8. WARRANTY
Subject to clauses 8.2 and 9 below, the Supplier warrants that the
Products will conform in all material respects with their description
as set out in the Written Proposal and be free from material defects
in design, materials and workmanship and that all Services will be
carried out with reasonable care and skill by personnel whose
qualifications and experience will be appropriate for the tasks to
which they are allocated.
Unless otherwise specifically stated in the Written Proposal, and
subject always to clause 8.3 below, if within the period of 12 months
of Delivery or such longer period or periods as may be specifically
stated in the Written Proposal, the Products prove to be materially
defective under proper use by the Customer and where such defect
arises solely as a consequence of defects in design, materials or
workmanship on the part of the Supplier and are not due to normal
wear and tear then the Supplier will make good the defect by repair
or, at its option, by the supply of replacement Products, parts or
components thereof.
In the case of any parts or components forming part of the Products
not manufactured by the Supplier,the Supplier agrees to pass on
to the Customer any warranty or guarantee (if any) which the
Supplier may have received from its supplier or manufacturer of
such parts or components, but not so as to impose on the Supplier
any liability greater than that imposed on the Supplier by clause
8.2.
All warranties, conditions and other terms implied by statute or
common law in respect of the sale of Products (save for the
conditions implied by section 12 of the Sale of Products Act 1979)
and the provision of the Services are, to the fullest extent permitted
by law, excluded from the Contract.
9. LIMITATION OF LIABILITY THE CUSTOMER'S ATTENTION IS SPECIFICALLY DRAWN TO THE PROVISIONS OF THIS CLAUSE 9.
This Clause 9 sets out the entire financial liability of the Supplier
(including any liability for the acts or omissions of its employees,
agents and sub-contractors) to the Customer in respect of:
9.1.1. any breach by the Supplier of the Contract; any use made by the Customer or its End User of the
Products and/or Services and/or any part of them; and
9.1.3. any representation, statement or tortious act or
omission (including negligence) arising under or in
connection with a Contract.
Nothing in these Conditions or a Contract shall be construed as
limiting or excluding the liability of the Supplier:
9.2.1. for death or personal injury resulting from negligence;
or
9.2.2. for any damage or liability incurred by the Customer as
a result of fraud (including a fraudulent
misrepresentation by the Supplier); or
9.2.3. for any liability incurred by the Customer as a result of
any breach by the Supplier of the condition as to title
or the warranty as to quiet possession implied by
section 2 of the Supply of Products and Services Act
1982.
Subject to clause 9.2, the Supplier shall not be liable to the
Customer or to any End User whatsoever for any loss of profits,
loss of business, depletion of goodwill, loss of anticipated savings,
loss of contract or any special, indirect, consequential or pure
economic loss, costs, damages, charges or expenses including,
without limitation, the costs of any temporary accommodation,
business interruption or professional fees, which may be suffered
by the Customer or the End user in consequence of these
Conditions or any Contract.
The Supplier’s total liability in contract, tort (including negligence or
breach of statutory duty), misrepresentation, restitution or
otherwise arising in connection with the performance or
contemplated performance of the Contract shall be for the direct
and reasonable costs of repair or, at its option, replacement of any
parts or components of the Products to the extent that the
Customer incurs such costs and/or the Customer is or becomes
liable directly for such costs and, for the avoidance of doubt, shall
be limited to a sum equivalent to the price paid to the Supplier by
the Customer for the Products or Services that are the subject of
the claim.
10. CUSTOMER’S FAIR DEALING WARRANTY
The Customer warrants that it has acquired and holds all necessary
licences, permissions and consents required for the installation,
carrying on of and use of the Products.
The Customer shall procure that the End User likewise complies
with the provisions of this clause 10.
11. INTELLECTUAL PROPERTY RIGHTS
The Customer acknowledges and agrees that all Intellectual
Property Rights in the Products (to include all component Products,
the Services) are vested in and are the property of the Supplier or
its licensor and shall remain the property of the Supplier or its
licensor (as appropriate).
The Customer shall promptly give notice in writing to the Supplier
if it becomes aware of:
11.2.1. any infringement or suspected infringement by a third
party of the Intellectual Property Rights relating to the
Products; and/or
11.2.2. any claim that any Product or part of the Solution
infringes the rights of any third party.
12. CONFIDENTIALITY AND THE SUPPLIER'S PROPERTY
Each Party shall keep in strict confidence all technical or
commercial know-how, specifications, inventions, processes or
initiatives which are of a confidential nature and which have been
disclosed by one Party (the “Disclosing Party”) to the other (the
“Receiving Party”), its employees, agents or sub-contractors and
any other confidential information concerning the Disclosing
Party’s business, the Products and the Services which the
Receiving Party may obtain as a result of such disclosure. Each
Party shall restrict disclosure of such confidential material to the
End User and to such of the Receiving Party’s employees, agents
or sub-contractors as may need to know the same for the purpose
of discharging the Receiving Party’s obligations to the Disclosing
Party under these Conditions, and shall ensure that its employees,
agents or sub-contractors are subject to obligations of
confidentiality corresponding to those which bind the parties to these Conditions and as may be required by law, a court of
competent jurisdiction or any governmental regulatory authority.
All materials, equipment, drawings, specifications and data
supplied by the Disclosing Party under or in accordance with these
Conditions shall, at all times, be and remain as between the
Disclosing Party and the Receiving Party the exclusive property of
the Disclosing Party and shall be held by the Receiving Party in
safe custody at its own risk and maintained and kept in good
condition until returned to the Disclosing Party, and shall not be
disposed of or used other than in accordance with the Disclosing
Party’s written instructions or authorisation.
The rights and obligations under this clause 12 shall survive
termination of the Contract, however arising.
13. DEFAULT BY CUSTOMER
The Customer shall pay to the Supplier, on demand, all reasonable
costs, charges or loss sustained or incurred by the Supplier
(including any direct, indirect or consequential losses, loss of profit
and loss of reputation, loss or damage to property and those arising
from injury to or death of any person and loss of opportunity to
deploy resources elsewhere) arising directly or indirectly from the
Customer’s fraud, negligence, failure to perform or delay in the
performance of any of its obligations under the Contract, subject to
the Supplier confirming such costs, charges and losses to the
Customer in writing.
14. DATA PROTECTION
Each Party shall comply with all applicable requirements of the
Data Protection Legislation.
The parties acknowledge that for the purposes of the Data
Protection Legislation, the Customer is the data controller and the
Supplier is the data processor (as such terms are defined in the
Data Protection Legislation).
The Customer will ensure that it has all necessary appropriate
consents and notices in place to enable lawful transfer of any
personal data (as such term is defined in the Data Protection
Legislation) to the Supplier for the duration and purposes of the
Contract.
15. TERMINATION
If a Contract is terminated all obligations in connection with the
Products and all Services listed in the Written Proposal shall also
terminate.
Without prejudice to any other rights or remedies it may have, the
Supplier may terminate or suspend a Contract immediately on
giving written notice to the Customer if:
15.2.1. the Customer commits a material breach of any of the
terms of the Contract and (if such a breach is
remediable) fails to remedy that breach within 14 days
of that Party being notified in writing of the breach; or
15.2.2. the Customer fails to pay any sum due under these
Conditions or under a Contract on the due date for
payment provided, in the case of termination, the
Customer has failed to remedy that breach within 14
days of being notified in writing of the breach and of
the Supplier’s suspension of its obligations under the
Contract; or
15.2.3. an order is made or a resolution is passed for the
winding up of the Customer, or circumstances arise
which entitle a court of competent jurisdiction to make
a winding-up order of the Customer; or
15.2.4. an order is made for the appointment of an
administrator to manage the affairs, business and
property of the Customer, or documents are filed with
a court of competent jurisdiction for the appointment of
an administrator of the Customer, or notice of intention
to appoint an administrator is given by the Customer or
the directors of the Customer or by a qualifying floating
charge holder (as defined in paragraph 14 of Schedule
B1 to the Insolvency Act 1986); or
15.2.5. a receiver is appointed of any of the Customer’s assets
or undertaking, or circumstances arise which entitle a
court of competent jurisdiction or a creditor to appoint
a receiver or manager of the Customer, or if any other
person takes possession of or sells the Customer’s
assets; or the Customer makes any arrangement or composition
with its creditors, or makes an application to a court of
competent jurisdiction for the protection of its creditors
in any way; or
15.2.7. the Customer ceases, or threatens to cease, to trade;
or
15.2.8. the Customer takes or suffers any similar or analogous
action in any jurisdiction in consequence of debt; or
15.2.9. there is a change of control (as defined in section 574
of the Capital Allowances Act 2001) of the Customer.
The Customer may terminate a Contract immediately on giving
written notice to the Supplier if the Supplier commits a material
breach of any of the terms of the Contract and (if such a breach is
remediable) fails to remedy that breach within 60 days of the
Supplier being notified in writing of the breach
On termination of the Contract for Customer default (in accordance
with clause 15.2), the Customer shall immediately pay to the
Supplier all of the Supplier’s abortive costs, any amounts the
Supplier owes to its own suppliers including but limited to the costs
of materials or goods properly ordered for the Products for which
the Supplier then has paid or is legally bound to pay and any direct
loss and/or damage caused to the Supplier by the termination.
On termination of the Contract for any reason:
15.5.1. the Customer (as relevant) shall immediately pay to the
Supplier all of the Supplier’s outstanding unpaid
invoices and interest and, in respect of Products and
Services supplied but for which no invoice has been
submitted, the Supplier may submit an invoice, which
shall be payable immediately on receipt;
15.5.2. the Customer (as relevant) shall, within a reasonable
time of the Supplier’s request, return all Products and
equipment owned by the Supplier. If the Customer (as
relevant) fails to do so, then the Supplier may enter the
Customer’s premises and take possession of such
Products and equipment. Until such Products and/or
equipment has been returned or repossessed, the
Customer (as relevant) shall be solely responsible for
its safe keeping; and
15.5.3. the accrued rights of the parties shall, notwithstanding
any specific provision of these Conditions, survive the
termination of the Contract.
16. FORCE MAJEURE
Neither Party shall have any liability to the other under a Contract
if it is prevented from or delayed in performing its obligations under
a Contract or from carrying on its business by acts, events,
omissions or accidents beyond its reasonable control, including but
not limited to strikes, lock-outs or other industrial disputes (whether
involving the workforce of the relevant Party 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 , pandemic or
epidemic or default of suppliers or sub-contractors.
17. COMMUNICATIONS
Any notice or communications about a Contract must be in writing
and must be personally delivered or sent by expedited delivery
service or certified or registered mail, return receipt requested, firstclass postage prepaid, or sent by email (provided that the sender
confirms the email by sending an original confirmation copy by
certified or registered mail or expedited delivery service within 3
business days after transmission) to the recipient Party at its
registered office or such changed address as shall be notified by
one party to the other for the purposes of this clause. Any notice
shall be deemed to have been given at the time of personal
delivery, or in the case of email upon transmission provided
confirmation is sent as described above, or in the case of expedited
delivery service or registered or certified mail 3 business days after
the date and time of mailing.
18. ASSIGNMENT
The Supplier may assign any benefit under these Conditions or a
Contract or any part of it to any person, firm or company.
The Customer shall not be entitled to assign the Contract or any
part of it without the prior written consent of the Supplier.
19. GENERAL
If any provision of the Contract is found by any court, tribunal or
administrative body of competent jurisdiction to be wholly or partly
illegal, invalid, void, voidable, unenforceable or unreasonable it
shall to the extent of such illegality, invalidity, voidness, voidability,
unenforceability or unreasonableness be deemed severable and
the remaining provisions of the Contract and the remainder of such
provision shall continue in full force and effect.
Failure or delay by the Supplier in enforcing or partially enforcing
any provision of the Contract shall not be construed as a waiver of
any of its rights under the Contract.
Any waiver by the Supplier of any breach of, or any default under,
any provision of the Contract by the Customer shall not be deemed
a waiver of any subsequent breach or default and shall in no way
affect the other terms of the Contract.
The parties to a Contract do not intend that any term of the Contract
shall be enforceable by virtue of the Contracts (Rights of Third
Parties) Act 1999 by any person that is not a party to it.
The formation, existence, construction, performance, validity and
all aspects of the Contract shall be governed by English law and
the parties submit to the exclusive jurisdiction of the English courts,
provided that for the sole benefit and at the sole discretion of the
Supplier, the Supplier may elect to apply the jurisdiction of any
foreign court applicable to the Customer.
The Supplier and the Customer are bound by these Conditions on the date
of the Order Confirmation or, where there is no Order Confirmation, in
accordance with clause 2.5.