1.1 In these General Conditions the following definitions apply:
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
“Applicable Law” means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction;
“Bribery Laws” means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption;
“Business Day” means a day other than a Saturday, Sunday or bank or public holiday;
“Completion” means installation of the Goods (to the extent the same is expressly required as part of the Services);
“Confidential Information” means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;
“Contract” means the agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order, and including all its schedules, attachments, annexures and statements of work;
“Control” has the meaning given to it in section 1124 of the Corporation Tax Act 2010;
“Controller” shall have the meaning given in applicable Data Protection Laws from time to time;
“Customer” means the named party in the Contract which has agreed to purchase the Deliverables from the Supplier and whose details are set out in the Order;
“Data Protection Laws” means, as binding on either party or the Deliverables:
a.) the GDPR;
b.) the Data Protection Act 2018;
c.) any laws which implement or supplement any such laws; and
d.) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
“Data Protection Supervisory Authority” means any regulator, authority or body responsible for administering Data Protection Laws;
“Defects Liability Period” means a period of 12 months following the date on which the Services are certified to have reached Completion
“Deliverables” means the Goods or Services or both as the case may be;
“Documentation” means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Deliverables;
“Force Majeure” means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
“GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);
“General Conditions” means the Supplier’s general terms and conditions of sale set out in this document;
“Goods” means the goods and related accessories, spare parts and Documentation and other physical material set out in the Order and to be supplied by the Supplier to the Customer in accordance with the Contract;
“Intellectual Property Rights” means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:
a.) whether registered or not
b.) including any applications to protect or register such rights
c.) including all renewals and extensions of such rights or applications
d.) whether vested, contingent or future
e.) to which the relevant party is or may be entitled, and
f.) in whichever part of the world existing;
“IPR Claim” has the meaning given in clause 14.1;
“Liquidated Damages” means liquidated damages at the rate, and subject to the limit set out in the Order;
“Location” means the address or addresses for delivery of the Goods and performance of the Services as set out in the Key Terms
“Milestones” is the milestones listed in the Order;
“Modern Slavery Policy” means the Supplier’s anti-slavery and human trafficking policy in force and notified to the Customer from time to time and available to the Customer on request
“Order” means the Customer’s order for the Deliverables in substantially the same form as set out in the Schedule overleaf;
“Personal Data” has the meaning given in the applicable Data Protection Laws from time to time;
“Price” has the meaning given in clause 3.1;
“processing” has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including “process”, “processed”, and “processes” shall be construed accordingly);
“Processor” has the meaning given to it in applicable Data Protection Laws from time to time;
“Protected Data” means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract;
“Scheme” means Part 1 of the Schedule to the Scheme for Construction Contracts (England and Wales) Regulations 1998 as amended by the Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (England) Regulations 2011
“Services” means the services set out in the Order and to be supplied by the Supplier to the Customer in accordance with the Contract;
“Specification” means the description or Documentation provided for the Deliverables set out or referred to in the Contract;
“Specified Perils” means fire, lightning, explosion, storm, flood, escape of water from any water tank, apparatus or pipe, earthquake, aircraft and other aerial devices or articles dropped there from riots and civil commotion
“Supplier” means AGF (UK) Limited (company registration 02917546) whose registered address is situated at Derings, Lockley Park, Welwyn, Hertfordshire AL6 0BL
“VAT” means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables and applicable at the date of invoicing; and
1.2 In these General Conditions, unless the context otherwise requires:
1.2.1 a reference to the Contract includes these General Conditions, the Order, and their respective schedules, appendices and annexes (if any);
1.2.2 any clause, schedule or other headings in these General Conditions are included for convenience only and shall have no effect on the interpretation of these General Conditions;
1.2.3 a reference to a ‘party’ means either the Supplier or the Customer and includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6 words in the singular include the plural and vice versa;
1.2.7 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.8 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
1.2.9 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract
1.2.10 a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
1.2.11 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2.1 These General Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3 No variation of these General Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Customer and the Supplier respectively.
2.4 Each Order by the Customer to the Supplier shall be an offer to purchase the Deliverables subject to the Contract including these General Conditions.
2.5 If the Supplier is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.
2.6 Unless withdrawn by the Supplier at an earlier date, the offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier for 20 Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.
2.7 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:
2.7.1 the Supplier’s written acceptance of the Order; or
2.7.2 the Supplier delivering or performing the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).
2.8 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.9 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer.
2.10 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.
3.1 The price for the Deliverables shall be as set out in the Order (the “Price”).
3.2 The Prices are exclusive of
3.2.1 packaging, delivery, insurance, shipping carriage, and all other related charges or taxes or describe relevant elements of the goods and services which are not included in the standard price which shall be charged in addition at the Supplier’s standard rates, and
3.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
3.4 Quotes will be valid for 2 weeks unless otherwise stated. On expiry of a Quote, or anytime thereafter the Supplier may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice in writing provided that the increase does not exceed 5% of the Prices in effect immediately prior to the increase.
3.5 Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Deliverables which exceeds 5% and which is due to any factor beyond the control of the Supplier, and where the Supplier is entitled to an extensions of time pursuant to clause 6.8 the Supplier is entitled to a fair and reasonable increase in the Prices to reflect the effect of any events giving rise to such entitlement.
4.1 The Supplier shall invoice the Customer on completion of a Milestone as set out in the Order, setting out the amount the Supplier considers is due on the Due Date and the basis on which that sum is calculated.
4.2 The due date for payment shall be the date of receipt of the invoice by the Customer (“Due Date”). Within 5 days of the Due Date the Customer shall issue a notice to the Supplier (“Payment Notice”), confirming the amount it considers is due on the Due Date, and the basis on which that sum is calculated (“the Notified Sum”).
4.3 If the Customer fails to issue a Payment Notice to the Supplier within the timescale set out in clause 4.2, the amount detailed in Suppliers invoice under clause 4.1 shall be the Notified Sum.
4.4 The Customer shall pay the Notified Sum within the period set out in the Order (“the Final Date for Payment”).
4.5 If the Customer wishes to pay less than the amount contained in the Payment Notice, or invoice, as the case may be, the Customer shall not later than 7 days before the Final Date for Payment, issue a notice to the Supplier confirming the amount the Customer considers is due on the date of that notice, and the basis on which that sum is calculated (“Pay Less Notice”)
4.6 The amount contained in a Pay Less Notice, if given, shall be the amount due at the Final Date for Payment.
4.7 If payment of any sums due and payable to the Supplier has not been made by the Final Date for Payment, the Supplier shall be entitled to charge 4% above the Bank of England base rate on the unpaid amount from the Final Date for Payment up the date such payment is actually made.
Without prejudice to any other provisions in these General Conditions, the Deliverables may be varied where the Customer requests and the Supplier agrees to any such variation. The Customer and Supplier shall agree the time and cost impact of any such variation, prior to, and as a condition of it being implemented. The Prices and all relevant time obligations in the General Conditions shall be adjusted to reflect any such agreement. Following such agreement, the Deliverables will be adjusted to reflect the variation.
6.1 The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location on the dates specified in the Order.
6.2 The Goods shall be deemed delivered on arrival at the Location by the Supplier or its nominated carrier (as the case may be).
6.3 The Services shall be performed by the Supplier at the Location on the date(s) specified in the Order.
6.4 The Services shall be deemed delivered by the Supplier only on completion of the performance of the Services at the Location.
6.5 The Supplier may deliver the Goods or perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.6 Each delivery or performance of the Deliverables made by the Supplier directly shall be accompanied by a delivery note stating:
6.6.1 the date of the Order;
6.6.2 the relevant Customer and Supplier details;
6.6.3 if Goods, the product numbers and type and quantity of Goods in the consignment;
6.6.4 if Services, the category, type and quantity of Services performed; and
6.6.5 any special instructions, handling and other requests.
6.7 The Supplier shall achieve completion of the Services by the Date for Completion of the Services as set out in the Order, or such later Date for Completion fixed under clause 6.8. If the Services are not so completed by the Date for Completion or by any later Date for Completion fixed under clause 6.8, the Supplier shall pay or allow the Customer Liquidated Damages between such Date for Completion and the date on which the Services have achieved Completion pursuant to clause 6.11 (as applicable). In no event shall the total amount of Liquidated Damages applicable under this clause 6.7 exceed the amount (if any) stated in the Order;
6.8 As soon as it becomes apparent that the Services will not achieve Completion by the Date for Completion (or any date fixed in accordance with the provisions of this Clause 6.8) including for payment or allowance of Liquidated Damages, where such failure or delay is caused or contributed to by:
6.8.1 any impediment, prevention or default, whether by act or omission, by the Customer (including the Customer’s employees, agents and/or third-party contractors)
6.8.2 the Customer’s failure to make the Location available;
6.8.3 the Customer’s failure to prepare the Location in accordance with the Supplier’s instructions or as required for the Deliverables;
6.8.4 the Customer’s failure to provide the Supplier with adequate instructions for performance or delivery;
6.8.5 any variation pursuant to clause 5
6.8.6 exceptionally adverse weather;
6.8.7 unfavourable site conditions;
6.8.8 the occurrence of any Specified Perils;
6.8.9 change in the Applicable Law after the date of the Order;
6.8.10 any loss or damage to any existing structures or the contents thereof (except where such loss of damage is caused by the negligence of the Supplier;
6.8.11 civil commotion or the use or threat of terrorism and/or the activities of the relevant authorities in dealing with such an event or threat;
6.8.12 strike, lock-out or local combination of workmen affecting any trade employed by the Supplier or engaged in the preparation, manufacture or transportation of any of the good or materials required for them;
6.8.13 Force Majeure.
then the Supplier shall thereupon in writing so notify the Customer of the cause or causes of any such delay (including all relevant material circumstances) and shall give particulars of its expected effects. Following receipt of such a written notification, the Customer shall award, in writing, such extension of time for completion (extending the Date for Completion as appropriate) as may be reasonable (having regard to the information supplied by the Supplier in support of his notification).
6.9 When the Supplier considers the Services have achieved Completion, they may so notify the Customer. Following the issue of such a notice by the Supplier, the Customer shall certify that the Services have reached Completion within 5 business days’ of the Supplier’s notification under this clause 6.11 (or set out reasons why such certification cannot be given).
6.10 Where the Customer fails to issue a notice (or set of reasons for not certifying) pursuant to clause 6.11, Completion shall be deemed to have occurred on the 6th business day after the Supplier’s notice under clause
6.11 If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all reasonable storage and insurance charges and any other costs and expenses incurred by the Supplier in doing so.
6.12 Except to the extent the Supplier is required to install any relevant Goods as part of the Services, if 10 Business Days following the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods without any obligation or liability to the Customer, except as provided for in clauses 6.14.1 and 6.14.2. The Supplier shall:
6.12.1 deduct all reasonable storage charges and costs of resale; and
6.12.2 account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Goods.
Risk in the Goods shall pass to the Customer on delivery, except where the Supplier is installing the Goods as part of the Services then risk in such Goods shall pass on installation.
8.1 Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.
8.2 Until title to the Goods has passed to the Customer, the Customer shall:
8.2.1 hold the Goods as bailee for the Supplier;
8.2.2 store the Goods separately from all other material in the Customer’s possession;
8.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
8.2.4 insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Supplier’s interest on the policy;
8.2.5 ensure that the Goods are clearly identifiable as belonging to the Supplier;
8.2.6 not remove or alter any mark on or packaging of the Goods;
8.2.7 inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 18.1.1 to 18.1.4 or 18.2.1 to 18.2.14; and
8.2.8 on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
8.3 Notwithstanding clause 8.2, the Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses18.1.1 to 18.1.4 or 18.2.1 to 18.2.14 has occurred or is likely to occur.
8.4 If the Customer resells the Goods in accordance with clause 8.3, title to the Goods shall pass to the Customer immediately prior to the resale.
8.5 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses18.1.1 to 18.1.4 or 18.2.1 to 18.2.14, the Supplier may:
8.5.1 require the Customer at the Customer’s expense to re-deliver the Goods to the Supplier; and
8.5.2 if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
9.1 The Supplier warrants that, at the time of performance, the Deliverables shall:
9.1.1 conform in all material respects to any sample, their description and to the Specification;
9.1.2 be free from material defects in design, material and workmanship;
9.1.3 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.1.4 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13; and
9.1.5 any media on which the results of the Services are supplied shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.2 The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.
9.3 As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, correct, repair, remedy, re-perform or refund the Deliverables that do not comply with clause 9 during the Defects Liability Period, provided that the Customer:
9.3.1 serves a written notice on Supplier not later than five Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;
9.3.2 such notice specifies that some or all of the Deliverables do not comply with clause 9.1 and identifying in sufficient detail the nature and extent of the defects; and
9.3.3 gives the Supplier a reasonable opportunity to examine the claim of the defective Deliverables.
9.4 The provisions of these General Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.
9.5 The Supplier shall not be liable for any failure of the Goods to comply with clause 9.1:
9.5.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;
9.5.2 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
9.5.3 to the extent caused by the Supplier following any specification, instruction or requirement of or given by the Customer in relation to the Goods;
9.5.4 where the Customer modifies any Goods without the Supplier’s prior written consent or, having received such consent, not in accordance with the Supplier’s instructions; or
9.5.5 where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 9.1.
9.6 Except as set out in this clause 9:
9.6.1 the Supplier gives no warranty and makes no representations in relation to the Deliverables; and
9.6.2 shall have no liability for their failure to comply with the warranty in clause 9.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
9.7 Notwithstanding any the clause in these General Conditions, nothing in these General Conditions shall be construed as imposing a fitness for purpose obligation on the Supplier in relation to the design of the Deliverables.
9.8 The Customer warrants that the Location and any relevant existing structures are free from defects and in suitable condition to allow for the Deliverables to be successfully performed.
9.9 The Customer shall indemnify the Supplier in relation to any damage to the existing structures and the content thereof.
10.1 For the purposes of this clause 10 the expressions ‘”adequate procedures”’ and ‘”associated with”’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
10.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
10.2.1 all of that party’s personnel;
10.2.2 all others associated with that party; and
10.2.3 all of that party’s subcontractors;
involved in performing the Contract so comply.
10.3 Without limitation to clause 10.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
10.4 The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach or possible breach by the Customer of any of the requirements in this clause 10.
10.5 Any breach of this clause 10 by the Customer shall be deemed a material breach of the Contract that is not remediable and shall entitle the Supplier to immediately terminate the Contract by notice under clause 18.1.1.
11.1 The Supplier shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.
11.2 The Customer undertakes, warrants and represents that:
11.2.1 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;
11.2.2 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the Supplier on request at any time throughout the Contract;
11.3 The Customer shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 11.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
11.4 Any breach of clause 11.2 by the Customer shall be deemed a material breach of the Contract and shall entitle the Supplier to terminate the Contract with immediate effect.
12.1 The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
12.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
12.3 Only where the Deliverables require the Supplier to design a material part of the Goods or Services, the Supplier shall maintain professional indemnity insurance in an amount of not less than £1 million (one million pounds) in the annual aggregate for a period beginning now and ending 2 (two) years after performance or delivery of the Deliverables provided always that such insurance is available at commercially reasonable rates.
12.4 Where the Supplier is installing the Goods as part of the Services and except as set out in any documents comprising these Contract, the Supplier shall take out and maintain employer’s liability cover at the level required by English law, public liability insurance cover at the level of £10,000,000 and a contractor’s all risks policy for the period up to Completion.
13.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 13.
13.2 Subject to clauses 13.5 and 13.6, the Supplier’s total liability shall not exceed the sum of set out in the Order.
13.3 Subject to clauses 13.5 and 13.6, the Supplier shall not be liable for consequential, indirect or special losses.
13.4 Subject to clauses 13.5 and 13.6, the Supplier shall not be liable for any of the following (whether direct or indirect) loss of profit, loss of revenue, loss or corruption of data, loss or corruption of software or systems, loss or damage to equipment, loss of use, loss of production, loss of contract, loss of commercial opportunity, loss of savings, discount or rebate (whether actual or anticipated), harm to reputation and/or loss of goodwill.
13.5 The limitation of liability set out in clauses 13.2 shall not apply in respect of any indemnities given by the Supplier under the Contract.
13.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
13.6.1 death or personal injury caused by negligence;
13.6.2 fraud or fraudulent misrepresentation;
13.6.3 any other losses which cannot be excluded or limited by Applicable Law;
14.1 The Supplier shall indemnify the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that use of the Deliverables infringes the Intellectual Property Rights of any third party (“IPR Claim”), provided that the Supplier shall have no such liability if the Customer:
14.1.1 does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
14.1.2 makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;
14.1.3 does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;
14.1.4 does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;
14.1.5 does not, at the Supplier’s request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer;
14.1.6 uses the Deliverables in combination with any other goods or services, which without such combination, no IPR Claim could or would have been made.
14.2 If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:
14.2.1 procure for the Customer the right to continue receiving the benefit of the relevant Deliverables; or
14.2.2 modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in material conformance to their Specification.
14.3 The Supplier’s obligations under clause 14.1 shall not apply to Deliverables modified or used by the Customer other than in accordance with the Contract or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use. The Customer shall not be entitled to use or dislcose any Deliverables for any purpose other than relating to the Project.
15.1 The Customer shall keep confidential all Confidential Information of the Supplier and of any Affiliate of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
15.1.1 any information which was in the public domain at the date of the Contract;
15.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
15.1.3 any information which is independently developed by the Customer without using information supplied by the Supplier; or
15.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
except that the provisions of clauses 15.1.1 to 15.1.3 shall not apply to information to which clause 15.4 relates.
15.2 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.
15.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
15.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any provisions of clause 16.
16.1 The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with all Data Protection Laws. Nothing in the Contract relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
16.2 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
16.3 The Customer shall indemnify and keep indemnified the Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to data subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a data protection supervisory authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 16.
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 6 months either party may terminate the Contract by written notice to the other party.
18.1 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if:
18.1.1 the Customer commits a material breach of the Contract and such breach is not remediable;
18.1.2 the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
18.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after the Supplier has given notification that the payment is overdue; or
18.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
18.2 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
18.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
18.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
18.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
18.2.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
18.2.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
18.2.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
18.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
18.2.8 has a resolution passed for its winding up;
18.2.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
18.2.10 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
18.2.11 has a freezing order made against it;
18.2.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;
18.2.13 is subject to any events or circumstances analogous to those in clauses 18.2.1 to 18.2.12 in any jurisdiction; OR
18.2.14 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 18.2.1 to 18.2.13 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
18.3 The Supplier may terminate the Contract at any time by giving not less than four weeks’ notice in writing to the Customer if the Customer undergoes a change of Control.
18.4 The right of the Supplier to terminate the Contract pursuant to clause 18.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.
18.5 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 18, it shall immediately notify the Supplier in writing.
18.6 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
19.1 Any notice given by a party under these General Conditions shall be in writing and in English, be signed by, or on behalf of, the party giving it, and be sent to the relevant party at the address set out in the Contract.
19.2 Notices may be given, and are deemed received:
19.2.1 by hand: on receipt of a signature at the time of delivery;
19.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
19.2.3 by Royal Mail International Tracked & Signed post: at 9.00 am on the fourth Business Day after posting; and
19.2.4 by email on receipt of a delivery OR read receipt email from the correct address.
19.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 19.1 and shall be effective:
19.3.1 on the date specified in the notice as being the date of such change; or
19.3.2 if no date is so specified, 2 Business Days after the notice is deemed to be received.
19.4 All references to time are to the local time at the place of deemed receipt.
19.5 This clause does not apply to notices given in legal proceedings or arbitration.
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Customer’s obligations only.
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
23.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
23.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
23.3 Nothing in these General Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these General Conditions and is duly signed or executed by, or on behalf of, each party.
25.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed.
25.2 Notwithstanding clause 25.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives the Supplier prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
26.1 The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.
26.2 The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
29.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
29.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
3.1 No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
30.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
The Customer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
If there is a conflict between the terms contained in the General Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the General Conditions shall prevail to the extent of the conflict.
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
Except as expressly provided for in clause 34.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
35.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 35.
35.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
35.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
35.3.1 Within 5 Business Days of service of the notice, the senior managers of each of the parties shall meet to discuss the dispute and attempt to resolve it.
35.3.2 If the dispute has not been resolved within 5 Business Days of the first meeting of the senior managers, then the matter shall be referred to the director/managing director (or persons of equivalent seniority) of each of the parties. The director/managing director (or equivalent) shall meet within 5 Business Days to discuss the dispute and attempt to resolve it.
35.4 Notwithstanding the content of clause 35.3, either party may if a dispute arises under this Contract which either party wishes to refer to adjudication at any time, then the Scheme shall apply in relation to any such adjudication. For the purposes of the Scheme the adjudicator shall be selected by written request to the Chairman of the Technology and Construction Solicitors Association.
35.5 Either party may issue formal legal proceedings at any time whether or not the steps referred to in clause 35.3 have been completed.
35.6 No action or proceedings for any breach of this Contract shall be commenced against the Supplier after the expiry of 6 years from Completion of the Deliverables.
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).