Version: June, 2020
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in Scotland, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with 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.
Controller, processor, date subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications)[; and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Deliverables: the deliverables set out in the Order produced or provided by the Supplier for the Customer.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 17.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service 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, as set out in the Customer's purchase order.
Services: the services, including any Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Supplier: Sany Heavy Machinery (UK) LTD registered in Scotland with company number SC656507 and having its registered office address at 20-23 Woodside Place, Glasgow, Strathclyde, United Kingdom, G3 7QF.
Supplier Materials: has the meaning given in clause 9.2(h).
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) 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.
(e) A reference to writing or written includes fax and email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written (including electronic) acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of  Business Days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Supplier's catalogue as modified by any applicable Goods Specification.
3.2 The Supplier reserves the right to modify the design or shape of the Goods to be delivered unless:
(a) such modifications substantially alter the Goods to be delivered and are unacceptable to the Customer; or
(b) the Supplier and the Customer have explicitly agreed on the binding character of Goods Specification as regards the delivery items (e.g. weight, dimensions, performance capacity, consumption of operating materials, operating costs, utility values, load capacity, tolerances, technical data) or of depictions of the same (e.g. drawings, illustrations). The aforementioned information from the Supplier relating to the Goods to be delivered or services to be provided as well as respective depictions are neither guaranteed nor do they constitute an agreement on assured properties unless explicitly confirmed otherwise by the Supplier in writing or electronically. If no such written or electronic confirmation is provided by the Supplier, the aforesaid information merely constitutes a non-binding description or qualification of the Goods or services from which deviations pursuant to the first sentence of this clause 3.2(b) are admissible. If the Supplier and the Customer have explicitly agreed on the binding character of specific properties of the Goods or services, the Supplier may only make modifications to Goods to be delivered or services to be rendered if such modifications are required under mandatory statutory provisions and are acceptable to the Customer. If the modifications are unacceptable, the Customer is entitled to withdraw from the contract. Any further claims shall be excluded.
3.3 To the extent that the Goods are modified in accordance with a Goods Specification, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Goods Specification. This clause 3.3 shall survive termination of the Contract.
3.4 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
(a) 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 (if applicable), 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; and
(b) it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location).
4.3 If the Supplier provides or has expressly agreed on a fixed delivery date and/or assembly period or date, the order confirmation shall state such delivery and assembly period or date. In any other instance any dates and/or periods included by the Supplier shall be non-binding. The delivery period shall not commence until the Customer has provided the Supplier with all documents, permits and approvals to be procured (if any) and until any agreed advance payments or sureties have been received from the Customer. Any delivery deadline shall be deemed to be met if prior to its expiry the Goods were prepared for shipment at the Supplier’s premises and readiness for dispatch has been notified to the Customer. The Supplier shall be entitled to refuse to hand over the Products to any carrier if the load cannot be secured pursuant to the respective UK law and/or guidelines on load security as a result of the condition of the transport vehicle provided by the carrier or if the Supplier does not consider the transport vehicle to be roadworthy pursuant to UK road traffic law or any other national laws relevant from time to time. If the Supplier refuses to hand over the Goods to the carrier for the aforementioned reasons, the provisions set forth in section 4.5 shall apply.
4.4 Partial deliveries shall be admissible to a reasonable extent if such delivery can be used by the Customer for the contractually agreed purpose, if the delivery of the remaining Goods is warranted and if the Customer will not incur any additional costs or expenses as a result.
4.5 If a delivery, after readiness for shipment has been notified to the Customer, is postponed at the Customer’s request or for any other reason within the Customer’s responsibility, the Supplier shall be entitled to charge costs of storage in the amount of 0.5% of the price of the Goods per month or part thereof, not exceeding 5% in total. The right of each party to prove that higher or lower costs or damages have been incurred remains unaffected by this clause. If the Supplier can reasonably prove higher costs and/or damages have been incurred by it then any such costs or damages shall be paid by the Customer.
4.6 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.7 Unless expressly stated otherwise, any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. In the event of a Force Majeure Event, the Supplier shall have the right to extend the delivery period for the duration of the Force Majeure Event plus a reasonable time for run-up or to cancel the contract due to the unperformed part of the contract either in part or in full. The Supplier will inform the Customer without undue delay in case such an Force Majeure Event occurring.
4.8 Where the delivery of the Goods to the Customer is delayed by virtue of the Supplier not being supplied properly or on time by its suppliers then the Suppler shall have no liability to the Customer for any order to affected.
4.9 If the Supplier fails to deliver the Goods, its liability shall be limited to the Customer’s ability to cancel its Order. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.10 If the Customer fails to take or accept delivery of the Goods within 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:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.11 If [ten] Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage, selling costs and any other additional expenses resulting therefrom charge the Customer for any shortfall below the price of the Goods.
4.12 The Customer shall be in default of acceptance if, having received notification from the Supplier that the Goods are ready for dispatch, it refuses to take over the Goods on the specified date or does not pick-up or commission a carrier to pick up the Goods on the specified date.
4.13 If the Supplier delivers up to and including % more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.14 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.
4.15 Delivery by the Supplier shall be subject to the proviso that any necessary export permits have been granted and there are no other obstacles to the Goods being exported by the Supplier as exporter/carrier or one of the Supplier’s suppliers as a result of any export or transportation regulations which have to be complied with.
4.16 Unless otherwise explicitly agreed upon, the Supplier shall select the type of packaging to be used at its sole discretion. The Goods will only be insured against theft, breakage, transportation, fire and water damage or other insurable risks at the express request and expense of the Customer.
4.17 The Customer shall be obliged to accept the Goods delivered even in the event that the items show remediable defects and may only be returned to the Supplier with the Customer’s remedy being as stated in clause 7.
4.18 The Customer shall be liable for any damage to the Goods for which it is responsible, which are caused before the acceptance of the Goods by the Customer including during the testing of the Goods or during any inspections of the Goods.
5. Quality of Goods
5.1 The Supplier warrants that on delivery, and for a period of  months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable Goods Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose expressly held out by the Supplier.
5.2 Subject to clause 5.3, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
(a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) 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.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) 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;
(c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on the Customer being notified by the Supplier of the Goods being ready for dispatch.
6.2 Title to the Goods shall not pass to the Customer until
(a) 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 which case title to the Goods shall pass at the time of payment of all such sums. Where the Supplier has an outstanding claim against the Customer, title shall not pass (regardless of payment) until such claim has been resolved to the satisfaction of the Supplier.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in excellent condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
(d) not take security over, pledge or transfer title to the Goods;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(d); and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 If before title to the Goods passes to the Customer the Customer:
(a) becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(d); or
(b) breaches the any term of these Conditions or any other agreement between the Supplier and the Customer;
(c) delays in the payment of the Goods,
then, without limiting any other right or remedy the Supplier may have:
(d) the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
(e) the Supplier may at any time:
(i) repossess the Goods and any costs and expenses shall be borne by the Customer;
(ii) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(iii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Claims for Defects
7.1 In the event of a defect, the Customer is required to provide notice of defects in writing to Supplier within 12 months of the date of delivery of the Goods to the Customer, specifying in reasonable detail the type and extent of the defect so that the Supplier can determine whether or not defect is justified. The Customer shall inspect the Goods delivered immediately upon receipt to inspect for damages. The Customer shall note any damage discovered thereby on the bill of lading, such objection being countersigned by the carrier, and notify the Supplier respectively in writing. Upon receipt of a written objection from the Customer, the Supplier is entitled to have the alleged defective Goods examined on the site of the Customer at its own expense by an independent expert and to take part in the examination with its own employees. If and insofar the examination proves that the alleged defect to the Goods does not exist, the Customer shall bear the costs of the examination and any ancillary costs and expenses.
7.2 If the Goods delivered are defective, the Supplier shall be entitled at its own discretion to either remedy the defect or supply a replacement item. The Supplier shall pay the costs associated with remedying the defect or supplying a replacement item. If the Customer asserts a justified claim for costs against the Supplier in this regard the Customer’s claim for the reimbursement of such costs shall be limited to its own costs. If the costs associated with remedying the defect or supplying a replacement item should increase due to the fact that the Goods have been taken to a place other than the agreed place of delivery at the request of the Customer, the Customer shall bear all resulting additional costs. The supply of a replacement item by the Supplier shall require that the Customer returns the defective Goods to the Supplier in exchange and that it pays compensation for any use of the same.
7.3 If the Supplier is not willing or able to remedy the defect or supply a replacement item, or if it refuses to do so or exceeds reasonable time limits for reasons within its own liability, or if it fails at least twice to remedy the defect for other reasons, the Customer shall be entitled at its discretion to withdraw from the contract or demand an appropriate reduction of the purchase price. In the event of a withdrawal, the Supplier shall be obliged to refund the purchase price paid only: in exchange for (i) the return of the defective Goods and (ii) payment of compensation for any use of the same by the Customer.
7.4 The Customer shall not be entitled to withdraw from the contract in respect of the defective Goods if:
(a) the Customer is not able to return the defective Goods;
(b) the Customer does not inform the Supplier in accordance with clause 7.1.
In the case of delivery of defective Goods where only part of the order is determined to be defective, the Customer shall only be entitled to remedy in respect of the defective Goods..
7.5 For essential third party products, (e.g. the truck chassis to which the delivery items are mounted in the case where the Supplier sells a complete vehicle to the Purchaser), the Supplier’s liability shall be limited to the ability of the Supplier to claim under its warranties with the third party provider. If the claim against the supplier of the third party product is not honoured then Customer shall have no right of recourse against the Supplier.
7.6 In relation to used Goods supplied by the Supplier, there shall be no right of recourse in respect of defects for the Customer, unless the Supplier has fraudulently concealed the existence of defects or provided a guarantee for any features of the used goods. The Supplier is only obliged to make reasonable, professional visual inspections of the used goods before they are sold and to check that they generally work. No further inspections shall be carried out by the Supplier.
7.7 Claims for defects under this clause 7 shall be void if the Customer reworks or engages a third party to rework, modify or attempt to fix the defective Goods without the prior written consent of the Supplier. In the event that such rework, modification or attempt to fix is not catastrophic to the Goods then the Supplier may remedy the defect or supply a replacement item with the Customer paying the costs in connection with remedying the defect.
7.8 No liability is accepted whatsoever for damage resulting from the following:
(a) unsuitable or improper use, violation of the Supplier’s instructions of use;
(b) incorrect assembly, commissioning or operating by the Customer or a third party, unless attributable to erroneous assembly or operating instructions provided by the Supplier;
(c) modifications to the delivery items by the Customer or a third party;
(d) natural deterioration/wear and tear, unless expressly guaranteed otherwise by the Supplier;
(e) incorrect or negligent handling or storage;
(f) using unsuitable consumables, replacement materials;
(g) chemical, electrochemical, mechanical, atmospheric or electrical effects, unless these are the fault of the Supplier;
(h) incorrect or incomplete documentation, in particular samples or drawings which the Customer has provided to the Supplier for the manufacture of the delivery item or that the Supplier had to adhere to in the manufacturing according to the Customer’s requirements. The Supplier is not obliged to check the Customer’s documents with regard to whether they are correct or complete;
(i) incorrect/defective materials supplied by the Customer for the manufacture of the Goods;
(j) inaccurate, incomplete or unsuitable requirements from the Customer with regard to the specification or design of the Goods.
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 (or as altered in the acceptance of 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 neccessary 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. Customer's obligations
9.1 The Customer shall not sell, distribute or otherwise make available the Goods to distributors, resellers or end users outside the UK.
9.2 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) 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 provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
(i) comply with any additional obligations as set out in the Service Specification and the Goods Specification;
9.3 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 (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services 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;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Customer's failure or delay to perform any of its obligations as set out in this clause 9.3; and
(c) 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. Charges and payment
10.1 The price for Goods:
(a) subject to 9.2, shall be the price set out in the Order or any dealer agreement (if applicable), if no price is quoted, the price set out in the Supplier's published price list as at the date of the order or any dealer agreement (if applicable); and
(b) shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods.
10.2 Orders for which the Supplier and Customer have agreed that the time of delivery shall be later than four months after conclusion of the respective Contract or orders which are executed later than four months after conclusion of the respective Contract for reasons caused by the Customer, shall be invoiced on the basis of Supplier’s published price list as at the date of delivery.
10.3 Notwithstanding clause 10.1, any additional of special items or services will be charged separately.
10.4 Unless explicitly agreed otherwise, the prices shall be in Great British Pounds Sterling and CIF, EXW (Incoterms 2010), exclusive of packaging and VAT. Customs duties, taxes, charges and similar levies which the Supplier is required to pay will be charged to the Customer separately.
10.5 The charges for Services shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier's daily fee rates or (where applicable) as set out in the Supplier’s service price list as amended from time to time; and
(b) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
10.6 The Supplier reserves the right to:
(a) increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date and the first such increase shall take effect on the first anniversary of the Commencement Date;
(b) 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:
(i) any factor beyond the control of the Supplier (including raw material price increases of 10% or more, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer 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.
10.7 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services.
10.8 The Customer shall pay each invoice submitted by the Supplier:
(a) within 14 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer (in the case of spare parts within 8 days of the date of the invoice); and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
10.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
10.10 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 15 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.10 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
10.11 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Unless the Supplier has approved such set-off, deduction or withholding in writing.
10.12 The Supplier is entitled to insist on advance payment or the rendering of sureties or guarantees from the Customer for Goods if it becomes aware of circumstances which may substantially impair the Customer’s creditworthiness and, as a result of which, at the Supplier’s discretion, jeopardise payment of the Customer’s accounts payable and due or to become due.
11. Intellectual property rights
11.1 Unless expressly stated otherwise by the Supplier, all Intellectual Property Rights in or arising out of or in connection with this Contract and/or the supply of Goods or Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
11.2 The Customer must refrain from any action or actions, which may lead to the violation of a right, a claim or a legally protected interest of the Supplier as regards its intellectual property rights.
11.3 The Customer shall promptly give notice to the Supplier in writing if it becomes aware of:
(a) any infringement or suspected infringement of the trademarks or any other Intellectual Property Rights relating to the Goods; or
(b) any claim that the Goods or the manufacture, use, sale or other disposal of any of the Goods, infringes the rights of any third party.
11.4 In respect of any matter that falls within clause 11.3(a):
(a) the Supplier shall in its absolute discretion, decide what action to take in respect of the matter (if any);
(b) the Supplier shall conduct and have sole control over any consequent action that it deems necessary and the Customer shall on being so requested by the Supplier and at the Supplier's cost assist in taking all steps to defend the rights of the Supplier including the institution at the Supplier's cost of any actions which it may deem necessary to commence for the protection of any of its rights; and
(c) the Supplier shall pay all costs in relation to that action and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action.
11.5 In respect of any matter that falls within clause 11.3(b) the Supplier solely shall determine what steps to take to prevent or terminate the infringement.
11.6 The Customer shall not use the trademarks or any other intellectual property of the Supplier as part of the name under which the Customer conducts its business, or any connected business, or under which it sells, uses or services any products, or in any other way, except as expressly permitted under these Conditions.
12. Data protection
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 12, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
12.3 Without prejudice to the generality of clause 12.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
12.4 Without prejudice to the generality of clause 12.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(d) assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Customer without undue delay on becoming aware of a personal data breach; and
(f) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data.
12.5 Either party may, at any time on not less than 30 days' notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
13.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 13.2.
13.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 13; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
14. Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
14.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
(d) defective products under the Consumer Protection Act 1987 (where it applies).
14.4 Subject to clause 14.3, the Supplier's total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
14.5 In clause 14.4:
(a) cap. The cap is 10% of the total charges in the contract year in which the breaches occurred.;
(b) contract year. A contract year means a 12-month period commencing with the Commencement Date or any anniversary of it; and
(c) total charges. The total charges means all sums paid by the Customer and all sums payable under the Contract in respect of goods and services actually supplied by the Supplier, whether or not invoiced to the Customer.
14.6 This clause 14.6 sets out specific heads of excluded loss:
(a) Subject to clause 14.3, the types of loss listed in clause 14.6(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) losses where the Customer has obtained limitations of liabilities from its customers in respect of same;
(ii) unforeseeable and non-typical losses;
(iii) losses which arise out of the Supplier providing technical information or advice to the Customer;
(iv) loss of profits;
(v) loss of sales or business;
(vi) loss of agreements or contracts;
(vii) loss of anticipated savings;
(viii) loss of use or corruption of software, data or information;
(ix) loss of or damage to goodwill; and
(x) indirect or consequential loss.
(c) The following types of loss and specific loss are not excluded:
(i) damages resulting from a negligent breach of material obligations on the part of its legal representatives, executives, employees or other vicarious agents; and
(ii) damages caused by gross negligence or wilful acts on the part of its non-managerial employees or other vicarious agents without the breach of material obligations. Material obligations in the aforementioned sense shall be such obligations which are essential to the proper performance of the contract and which contractual partners may typically expect to be met.
14.7 The Supplier shall not be liable for any claim unless notice in writing summarising the nature of the claim (in so far as it is known to the Customer) and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Customer to the Supplier within 30 days of becoming aware of such a claim.
14.8 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 8. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.9 This clause 14 shall survive termination of the Contract.
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
15.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of Control of the Customer.
15.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
16. Consequences of termination
16.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. 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, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
17. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate this agreement by giving 10 days' written notice to the affected party.
18.1 Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(i) sent by fax to its main fax number or sent by email to the address specified in the Order.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 18.2(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 18.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
18.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misrepresentation] based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
18.7 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
18.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
18.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
18.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.