1.1 The following definitions and rules of interpretation in this condition 1 apply in these terms and conditions (the Conditions):
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in condition 2.2 or condition 2.3 (as the case may be).
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services, which comprises an Order, which has been accepted in writing by the Supplier, and these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.
Customer: the person, firm or company, who purchases the Goods and/or Services from the Supplier.
Customer’s Equipment: any equipment, systems, cabling or facilities, which is or are provided by the Customer and used directly or indirectly in the supply of the Goods and/or Services.
Data Protection Legislation: means the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) and any other data protection legislation applicable in the UK from time to time, and terms in condition 15 relating to data protection shall, unless the context otherwise requires, have the respective meanings given to them in the Data Protection Legislation.
Deliverables: all Documents, products and materials, which are developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Goods and/or Services in any form, including computer programs, data, drawings, reports, processes and specifications (including drafts).
Delivery Location: has the meaning given in condition 5.2.
Document: includes, without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.
Force Majeure Event: has the meaning given to it in condition 18.
Goods: the goods (or any part of them), including but not limited to consumables, that are set out in the Order.
Goods Specification: any specification for the Goods, which is provided by the Customer to the Supplier.
In-put Material: all Documents, information, plans and materials which are to be provided by the Customer relating to the Goods and/or Services including (without limitation), computer programs, data, reports, plans and specifications.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other 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: the Customer’s order for the supply of Goods and/or Services in accordance with the Goods Specification and/or the Services Specification, as set out in the Customer’s purchase order form.
Personal Data: personal data (as defined in the Data Protection Legislation), which is processed by the Supplier on behalf of the Customer pursuant to the Contract.
Pre-existing Materials: all Documents, information and materials which are to be provided by the Supplier relating to the Goods and/or Services which existed prior to the Commencement Date including computer programs, data, reports, plans, drawings, designs, processes and specifications.
Services: the services, which are to be supplied by the Supplier to the Customer as set out in the Service Specification, and any other services which the Supplier provides, or agrees to provide, to the Customer.
Service Specification: the description or specification for the Services, which is provided by the Customer to the Supplier.
Supplier: Fleetsolve Limited whose registered office is at Unit 6, Riverview Business Park, Riverview Road, Bromborough, Wirral CH62 3RR (company number 04478975).
Supplier’s Equipment: any equipment, including (but not limited to) tools, systems, cabling or facilities, which are to be provided by the Supplier or its subcontractors and used directly or indirectly in the supply of the Goods and/or Services, which are not the subject of a separate agreement between the parties under which title passes to the Customer.
Technical Submission: the technical document that is produced by the Supplier which interprets the Goods Specification and/or the Service Specification supplied by the Customer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
Website: the Supplier’s website which is located at www.fleetsolve.com
1.2 Headings in these Conditions shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a party includes its personal representatives, successors and permitted assigns.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.7 A reference to writing or written includes faxes but not email (save for conditions 2.2 and 2.3).
1.8 Any obligation in the Contract on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions.
2.2 If no technical revision is required to the Order and the Supplier does not need to produce a Technical Submission, the Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order by email, at which point and on which date the Contract shall come into existence (the Commencement Date).
2.3 If technical revision is required to the Order, the Supplier shall draft the Technical Submission, which the Supplier shall send to the Customer together with the prices for the delivery of the Goods and/or the performance of the Services in accordance with the provisions of the Technical Submission. The Customer shall notify the Supplier in writing if it accepts the Technical Submission and the prices for the Goods and/or Services. Upon receipt of such notification, the Order shall be amended accordingly and shall only be deemed to be accepted when the Supplier issues written acceptance of such amended Order by email, at which point and on which date the Contract shall come into existence (the Commencement Date).
2.4 If the Supplier is unable to supply the Customer with the Goods and/or Services in accordance with either condition 2.2 or 2.3, the Supplier shall notify the Customer that the Order will not be accepted.
2.5 These Conditions apply to the Contract to the exclusion of any other terms which the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 (thirty) days from its date, unless otherwise stated, provided that the Supplier has not previously withdrawn it.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. COMMENCEMENT AND DURATION
3.1 The Goods and/or Services, which are to be supplied under the Contract, shall be provided by the Supplier to the Customer from the Commencement Date.
3.2 Subject to condition 16, the Goods and/or Services, which are to be supplied under the Contract, shall continue to be supplied until:
3.2.1 in the case of Goods, completion of delivery to the Delivery Location of the last of the Goods;
3.2.2 in the case of Services, other than Services that are ongoing, completion and sign off of the Services by the Supplier and the Customer; and/or
3.2.3 in the case of ongoing Services, termination of the Contract in accordance with these Conditions.
4.1 The Goods are as described on the Website and/or in the relevant Order. Any images of the Goods on the Website are for illustrative purposes only and are published for the sole purpose of giving an approximate idea of the Goods described.
4.2 The Supplier reserves the right to amend the Goods Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Goods, and the Supplier shall notify the Customer in any such event.
5. DELIVERY OF GOODS
5.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is
being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
5.2 The Supplier shall deliver the Goods to the location that is set out in the Order or such other location as the parties may agree in writing (the Delivery Location).
5.3 Delivery of the Goods shall be deemed completed on the completion of the unloading of the Goods at the Delivery Location.
5.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.
5.5 The Supplier shall not be liable for any delay in delivery of the Goods that is caused by:
5.5.1 a Force Majeure Event; or
5.5.2 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.
5.6 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
5.7 If the Customer fails to accept delivery of the Goods within 3 (three) Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
5.7.1 delivery of the Goods shall be deemed to have been completed at 09:00 on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
5.7.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.8 If the Customer has not accepted delivery of the Goods within 10 (ten) Business Days after the Supplier notified the Customer that the Goods were ready for delivery, the Supplier may resell or otherwise dispose of part or all of the Goods.
5.9 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.
6. QUALITY OF GOODS
6.1 The Supplier warrants that, on delivery, the Goods shall:
6.1.1 conform in all material respects with their description and any applicable Goods Specification;
6.1.2 be free from material defects in design, material and workmanship;
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
6.1.4 be fit for any purpose held out by the Supplier.
6.2 The Customer shall inspect the Goods upon completion of delivery and shall notify the Supplier in writing within 3 (three) Business Days of completion of delivery of any non-conformance of the Goods to the warranties set out in condition 6.1
6.3 Subject to condition 6.4 and notice being given by the Customer in accordance with condition 6.2, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
6.3.1 the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranties set out in condition 6.1;
6.3.2 the Supplier is given a reasonable opportunity of examining such Goods; and
6.3.3 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.
6.4 The Supplier shall not be liable for the Goods’ failure to comply with the warranties set out in condition 6.1 if:
6.4.1 the Customer makes any further use of such Goods after giving notice in accordance with condition 6.2;
6.4.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
6.4.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
6.4.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
6.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
6.4.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.5 Except as provided in this condition 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranties set out in condition 6.1.
6.6 The Supplier shall pass on any relevant manufacturer’s guarantees or warranties in respect of Goods that have been provided to the Customer pursuant to the Contract.
6.7 The terms of these Conditions shall apply to any repaired or replacement Goods that are supplied by the Supplier.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery at the Delivery Location.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 hold such Goods on a fiduciary basis as the Supplier’s bailee;
7.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
7.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.4 not act in any way that is inconsistent with the Supplier’s ownership of title to the Goods, including reselling and attempting to resell the Goods;
7.3.5 maintain such Goods in satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks with an insurer that is reasonably acceptable to the Supplier. The Customer shall 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. On request, the Customer shall allow the Supplier to inspect such Goods and the insurance policy;
7.3.6 notify the Supplier immediately if it becomes subject to any of the events listed in condition 16.1.4 to 16.1.11; and
7.3.7 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in condition 16.1.4 to 16.1.11 then, without limiting any other right or remedy the Supplier may have the Supplier may at any time:
7.4.1 require the Customer to deliver up all Goods in its possession in respect of which title remains with the Supplier; and
7.4.2 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.
8. SUPPLY OF SERVICES
8.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
8.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
8.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
9. SUPPLIER’S OBLIGATIONS
9.1 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at any of the Customer’s premises and that have been communicated to it under condition 10.1.5, provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
9.2 During the term of the Contract and for a period of 6 years after termination or expiry, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance of no less than £10M and public liability insurance of no less than £10M to cover the liabilities that may arise under or in connection with the Contract and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
10. CUSTOMER’S OBLIGATIONS
10.1 The Customer shall:
10.1.1 ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
10.1.2 co-operate with the Supplier in all matters relating to the Goods and/or Services;
10.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to deliver the Goods and/or provide the Services;
10.1.4 provide to the Supplier, in a timely manner, such In-put Material and other information as the Supplier may require and ensure that such information is complete and accurate in all material respects;
10.1.5 be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Goods and/or Services, including identifying, monitoring, removing and disposing of any hazardous materials from any of its premises in accordance with all applicable laws, before and during the supply of the Goods and/or Services at those premises, and informing the Supplier of all of the Customer’s obligations and actions under this condition 10.1.5;
10.1.6 unless otherwise agreed in writing with the Supplier, obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Goods and/or Services, the installation of the Supplier’s Equipment, the use of In- put Material and the use of the Customer’s Equipment in relation to the Supplier’s
Equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases on or before the Commencement Date;
10.1.7 ensure that all the Customer’s Equipment is in good working order and suitable for the purposes for which it is used in relation to the Goods and/or Services and conforms to all relevant United Kingdom standards or requirements;
10.1.8 ensure that it maintains adequate levels of public liability and employer’s liability insurance throughout the duration of the Contract;
10.1.9 ensure that when required there is a member of staff at the Delivery Location and/or the Customer’s premises (as the case may be) at the time the Supplier makes delivery of the Goods and/or Services;
10.1.10 keep and maintain the Supplier’s Equipment in accordance with the Supplier’s instructions as notified in writing from time to time, and shall not dispose of or use the Supplier’s Equipment other than in accordance with the Supplier’s written instructions or authorisation;
10.1.11 ensure that any fuelled Goods supplied by the Supplier are fuelled with quality fuel to the required standard, as specified by the Supplier. The Supplier shall not be liable for any loss or damage suffered by the Customer as a result of the Customer using fuel of a different standard; and
10.1.12 comply with all applicable laws, including health and safety laws.
10.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (a Customer Default):
10.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services or delivery of the Goods until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
10.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this condition 10.2; and
10.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
10.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including, without limitation, 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.
10.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the date of the Contract to the expiry of 12 (twelve) months after the termination or expiry of the Contract, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Goods and/or
11. CHARGES AND PAYMENT
11.1 In consideration of the provision of the Goods and/or Services by the Supplier, the Customer shall pay the charges as set out in the Order, which shall specify whether they shall be on a time and materials basis, a fixed price basis or a combination of both. Condition
11.2 shall apply if the Supplier provides Goods and/or Services on a
time and materials basis. Condition 11.3 shall apply if the Supplier provides the Goods and/or Services for a fixed price. The remainder of this condition 11 shall apply in either case.
11.2 Where Goods and/or Services are provided on a time and materials basis:
11.2.1 the charges payable for the Services shall be calculated in accordance with the Supplier’s standard daily fee rates, as set out in the Order and as amended from time to time in accordance with condition 11.10;
11.2.2 all charges quoted to the Customer shall be exclusive of VAT, which the Supplier shall add to its invoices at the appropriate rate; and
11.2.3 invoices shall be sent to the Customer on or after delivery of the Goods to the Delivery Location or completion of the Services unless pre-payment has been made or alternative payment terms have been agreed in writing by the Supplier.
11.3 Where Goods and/or Services are provided for a fixed price, the total price for such Goods and/or Services shall be the amount set out in the Order. The total price shall be paid to the Supplier (without deduction or set-off) by the Customer within 30 (thirty) days of the date of the Supplier’s invoice unless separate payment terms are agreed by the Supplier in writing. Any fixed price and daily rate contained in the Order excludes:
11.3.1 the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Goods and/or Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Supplier for the supply of the Goods and/or Services. Such expenses, materials and third party services shall be invoiced by the Supplier; and
11.3.2 VAT, which the Supplier shall add to its invoices at the appropriate rate.
11.4 The Customer shall pay each invoice submitted to it by the Supplier without deduction, set off or withholding other than as required by law in full and in cleared funds, within 30 (thirty) days of the date of the invoice to a bank account nominated in writing by the Supplier. The Customer shall not be entitled to assert any credit, set off
or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
11.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
11.5.1 charge interest on such sum from the due date for payment at the annual rate of 8 (eight) per cent above the base lending rate from time to time of The Bank of England accruing on a daily basis and being compounded quarterlyuntil payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
11.5.2 suspend all deliveries of the Goods and/or performance of the Services until payment has been made in full.
11.6 Time for payment shall be of the essence of the Contract.
11.7 Credit terms are subject to the Supplier obtaining satisfactory credit checks in relation to the Customer and the Supplier reserves the right to alter its payment terms in the event that such credit checks are not satisfactory.
11.8 All sums payable to the Supplier under the Contract shall become due immediately on its termination or expiry, despite any other provision. This condition 11.8 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
11.9 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.
11.10 The Supplier reserves the right to:
11.10.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date provided that such an increase shall not exceed the greater of 10 (ten) per cent and the percentage increase to the Retail Prices Index in the 12 (twelve) month period preceding such anniversary of the Commencement Date; and
11.10.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
22.214.171.124 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
126.96.36.199 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
188.8.131.52 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights created now or in the future and all other rights in the Deliverables and the Pre-existing Materials or arising out of or in connection with the Goods or Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier. The Customer acknowledges that, where the Supplier does not own any Pre-existing Materials, the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.
12.2 To the extent that any of the Intellectual Property Rights referred to in condition 12.1 do not automatically vest in the Supplier, in consideration of the Supplier’s performance of its obligations under the Contract, the Customer hereby assigns such Intellectual Property Rights to the Supplier (and, to the extent that such assignment shall be deemed to be invalid, the Customer shall hold such Intellectual Property Rights on trust for the Supplier).
12.3 Each party hereby grants to the other a revocable, non-exclusive, non-transferable, fully paid-up, royalty free licence (without the right to sub-licence) to use, for the duration of the Contract, such of its Intellectual Property Rights as the other party reasonably needs to in connection with the performance of its obligations under the Contract.
13. CONFIDENTIALITY AND THE SUPPLIER’S PROPERTY
13.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, designs, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier, its employees, agents, consultants or subcontractors and any other confidential information
concerning the Supplier’s business or its products which the Customer may obtain.
13.2 The Customer may disclose such information:
13.2.1 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer’s obligations under the Contract; and
13.2.2 as may be required by law, court order or any governmental or regulatory authority.
13.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 13 and enter into a confidentiality agreement on the terms of this condition 13.
13.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
13.5 All materials, equipment and tools, drawings, designs, specifications and data supplied by the Supplier to the Customer (including Pre-existing Materials and the Supplier’s Equipment) shall, at all times, be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
13.6 On termination or expiry of the Contract, the Customer shall:
13.6.1 immediately deliver to the Supplier all Documents, books, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Supplier, which is in its possession or under its control; and
13.6.2 to the extent possible, irretrievably delete any information relating to the business of the Supplier stored on any magnetic or optical disk or memory and all matter derived from such sources which is in its possession or under its control.
14. LIMITATION OF LIABILITY
14.1 This condition 14 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
14.1.1 any breach of the Contract;
14.1.2 any use made by the Customer of the Goods and/or Services, the Deliverables or any part of them; and
14.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
14.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
14.3.1 for death or personal injury resulting from its negligence;
14.3.2 for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
14.3.3 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 Goods and Services Act 1982.
14.4 Subject to condition 14.2 and condition 14.3, the Supplier shall not be liable for:
14.4.1 loss of profits; or
14.4.2 loss of business; or
14.4.3 depletion of goodwill and/or similar losses; or
14.4.4 loss of anticipated savings; or
14.4.5 loss of goods; or
14.4.6 loss of contract; or
14.4.7 loss of use; or
14.4.8 loss of corruption of data or information; or
14.4.9 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
14.5. 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 limited to the financial cap of those insurance policies that are set out in condition 9.2.
15. DATA PROTECTION
15.1 Both parties shall (and shall procure that any of their respective directors, officers, employees, permitted agents, licensees and contractors shall) comply with all applicable requirements of the Data Protection Legislation. This condition 15 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
15.2 In respect of Personal Data, the parties agree and acknowledge that the Customer is the controller and the Supplier is a processor acting on behalf of the Customer. Processing of personal data by the Supplier under the Contract shall be restricted in terms of its subject matter, nature and purpose to such processing activities (and for such purposes) as the Supplier is reasonably required to undertake in connection with its provision of Goods and/or Services under the Contract; in respect of its duration to the duration of the term of the Contract (and such reasonable period thereafter as the parties may agree in writing); and in respect of the types of Personal Data and categories of data subject to the types of data and data subjects notified by the Customer to the Supplier from time to time in writing.
15.3 The Customer shall:
15.3.1 ensure that it has in place all necessary appropriate legal bases, consents (if required), notices and policies to enable the lawful transfer of Personal Data to, and the lawful processing of such Personal Data by, the Supplier;
15.3.2 ensure that all Personal Data transferred to the Supplier shall be accurate and up-to-date;
15.3.3 not instruct the Supplier to undertake any processing activity that does not comply with the Data Protection Legislation;
15.3.4 not knowingly or negligently do or omit to do anything which places theSupplier in breach of its obligations under the Data Protection Legislation; and
15.3.5 indemnify the Supplier (to the fullest extent permitted by law) against any claim, loss, damage, expense or fine arising: (a) under the Data Protection Legislation that the Supplier may incur as a result of any action or omission by the Customer (unless such action or omission is specifically requested by the Supplier); or (b) out of or in connection with any breach by the Customer of this condition 15.
15.4 The Supplier shall:
15.4.1 process Personal Data only on the written instructions of the Customer (including the Contract), save where otherwise required by law (in which case the Supplier will notify the Customer of such requirement prior to such processing, unless prohibited from doing so by such law);
15.4.2 transfer Personal Data outside the EEA only where the European Commission has adopted a decision that the recipient country ensures an adequate level of protection or where the Supplier provides appropriate safeguards and ensures the availability for data subjects of enforceable data subject rights and effective legal remedies (in accordance with the requirements of the Data Protection Legislation);
15.4.3 obtain a commitment of confidentiality from any person it allows to process Personal Data;
15.4.4 engage third parties to process Personal Data on its behalf only with the prior consent of the Customer and on contractual terms no less restrictive than this condition 15;
15.4.5 implement appropriate technical and organisational measures to: (a) ensure an appropriate level of security of Personal Data; and (b) assist the Customer to respond to requests for exercising data subjects’ rights;
15.4.6 assist the Customer to comply with their obligations in respect of any personal data breach (including notification of the same to the supervisory authority and/or data subjects);
15.4.7 make available to the Customer on request all information reasonably necessary to demonstrate compliance with this condition 15; and
15.4.8 on termination or expiry of the Contract (however caused), at the Customer’s choice and cost, delete or return to the Customer all Personal Data and copies thereof that it has within its power, ownership or control.
16. TERMINATION AND CONSEQUENCES OF TERMINATION
16.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other if:
16.1.1 the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 (seven) days after being notified in writing to make such payment; or
16.1.2 the other party commits a breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30(thirty) days of that party being notified in writing of the breach; or
16.1.3 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
16.1.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
16.1.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or 16.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;
16.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
16.1.8 a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
16.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
16.1.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 (fourteen) days; or
16.1.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 16.1.4 to condition 16.1.10 (inclusive); or
16.1.12 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
16.2 The Supplier shall be entitled to terminate the Contract in the event that there is a change of Control of the Customer.
16.3 The Customer shall not be entitled to terminate the Contract at any time without the prior written agreement of the Supplier, who will be entitled to charge the Customer for the full price of the Goods ordered and the Services performed up to and including the date of termination and reserves its right to impose a cancellation charge, which shall be a reasonable pre-estimate of losses that it is likely to incur as a result of such termination.
16.4 On expiry or termination of the Contract for any reason:
16.4.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services that have been supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
16.4.2 the Customer shall return all of the Supplier’s Equipment, Pre-existing Materials and Deliverables. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping; and
16.4.3 the accrued rights and liabilities of the parties as at expiry or termination and the continuation of any provision expressly stated to survive or implicitly surviving expiry or termination, shall not be affected.
16.5 On expiry or termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
16.5.1 condition 7;
16.5.2 condition 9.2;
16.5.3 condition 10.3;
16.5.4 condition 10.4; and
16.5.5 conditions 11 to 28.
17. DISPUTE RESOLUTION PROCEDURE
17.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (a Dispute) then, except as expressly provided in the Contract, the parties shall follow the dispute resolution procedure set out in this condition 17:
17.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a Dispute Notice), together with relevant supporting documentation. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute;
17.1.2 if the parties are for any reason unable to resolve the Dispute within 30 (thirty) days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (an ADR notice) to the other party requesting a mediation. A copy of the ADR notice should be sent to CEDR Solve. The mediation will start not later than 28 (twenty-eight) days after the date of the ADR notice. Unless otherwise agreed by the parties, the place of mediation shall be nominated by the mediator.
17.2 The commencement of mediation shall not prevent the parties commencing or continuing court proceedings.
18. FORCE MAJEURE
The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, a shortage of raw materials, act of God, war, riot, civil commotion, terrorist attack, pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors (a Force Majeure Event).
19.1 The Supplier may, from time to time and subject to Customer’s prior written consent, which shall not be unreasonably withheld or delayed change the Goods and/or Services, provided that such changes do not materially affect the nature or quality of the Services and, where practicable, it will give the Customer at least 1 (one) month’s notice of any change.
19.2 Subject to condition 19.1, no variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
19.3 The Customer acknowledges that any changes it requires to the Contract may result in the price of the Goods and/or Services being increased.
20.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
20.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
21.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
21.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
22. ENTIRE AGREEMENT
22.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
22.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
22.3 Nothing in this condition shall limit or exclude any liability for fraud.
23.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights or obligations under the Contract.
23.2 The Supplier may at any time assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
23.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
24. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
25. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
26.1 Save for conditions 2.2 and 2.3 which may be served by email, any notice required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified in the Order, or as otherwise specified by the relevant party by notice in writing to the other party.
26.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in the Order or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
26.3 This condition 26 shall not apply to the service of any in any proceedings or other documents in any legal action.
26.4 A notice required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.
The Customer shall not make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of the Contract, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the Supplier, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
28. GOVERNING LAW AND JURISDICTION
28.1 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.
28.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).