1. INTERPRETATION
The following definitions and rules of interpretation apply in these terms.
1.1. DEFINITIONS:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the commencement date of a Contract for Maintenance Services as set out in a Service Agreement Quote.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Maintenance Services in accordance with these terms and a Quote.
Customer: the person or entity which purchases the Goods and/or Maintenance Services from the Supplier.
Data Protection Legislation: all applicable privacy and data protection laws including the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) and any applicable national implementing laws, regulations and secondary legislation in England and Wales (including the Data Protection Act 2018), relating to the processing of Personal Data (or in the event that the UK leaves the European Union, all equivalent legislation enacted in the UK in respect of the protection of Personal Data) and the privacy of electronic communications, all as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) and “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing/processes/process” and “technical and organisational measures” shall have the meanings prescribed in the Data Protection Legislation).
Force Majeure Event: an event or circumstance beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Quote.
Goods Quote: the Supplier’s quotation for Goods including any Goods Specification.
Goods Specification: any specification for the Goods, including any relevant plans or drawings provided by the Supplier.
Initial Term: means the initial term for the provision of the Maintenance Services as set out in the Service Agreement Quote.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, 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.
Maintenance Services: the maintenance services to be provided by the Supplier as set out in a Service Agreement Quote.
Order: the Customer’s acceptance of the Quote, as the case may be.
Premises: means the Customer’s premises as set out in the relevant Quote where the Goods shall be delivered and/or the Maintenance Services performed.
Quote: a Service Agreement Quote or a Goods Quote.
Service Agreement Quote: the Supplier’s quotation for Maintenance Services including any special conditions and a service level schedule.
Supplier: Ansador Limited registered in England and Wales with company number 01681135.
Year: one calendar year from the Commencement Date and each anniversary thereof
1.2. INTERPRETATION:
(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. TERM
2.1. The Contract shall commence on the Commencement Date.
2.2. The Contract shall continue, unless terminated earlier in accordance with clause 16, for the Initial Term. After the Initial Term, the Contract shall continue and be automatically extended for a period of one Year (“Renewed Term”) at the end of the Initial Term and for another Renewed Term at the end of each Renewed Term unless notice of six months is given by either party to terminate the Contract at the end of the Initial Term or any Renewed Term as the case may be, with the Initial Term and all Renewed Terms together being the “Term”.
3. BASIS OF CONTRACT
3.1. The Quote constitutes an offer by the Supplier to provide Goods and/or Maintenance Services to the Customer in accordance with these terms. If the Quote is not accepted within 20 Business Days and the Customer attempts to accept the Quote after such timeframe then the Supplier may at its discretion allow the Customer to accept a Quote at a later date or provide the Customer with an updated Quote for acceptance as set out in this clause 3.1.
3.2. The Supplier’s offer shall be accepted by the Customer accepting the Quote or otherwise instructing the Supplier to provide the Goods and/or Maintenance Services.
3.3. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Maintenance Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Maintenance Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
3.4. These terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.5. All of these terms shall apply to the supply of both Goods and Maintenance Services except where application to one or the other is specified.
4. GOODS
4.1. The Goods to be purchased are as described in the Quote. Once a Quote is accepted by the Supplier it cannot be cancelled.
4.2. To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, 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 4.2 shall survive termination of the Contract.
4.3. The Supplier reserves the right to amend the Goods Quote if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4.4. If for factors outside its control the Supplier cannot deliver the Goods detailed in the Quote it may at its discretion supply the Customer with an alternative option which meets or exceeds the Specification in relation to such Goods (“Alternative”). The Supplier will inform the Customer if the Alternative will cost more than the Goods detailed in the Quote. In such circumstances the Supplier will give the Customer the option to cancel within seven (7) days of being informed of the increased cost of the Alternative, subject to reimbursing the Supplier for any third party costs already incurred in relation to the Order. The Supplier may alternatively at its discretion offer to pay for any extra cost incurred in supplying the Alternative.
4.5. The Supplier reserves the right to increase its charges for Maintenance Services or to charge a fee in line with its usual rates as notified to the Customer from time to time for the installation of Goods as set out in clause 10.2.
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.
5.2. The Supplier shall at the cost of the Customer deliver the Goods to the Premises or such other location as the parties may agree (“Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
5.3. Delivery of the Goods shall be completed on the completion of 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. 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.
5.5. 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 as set out in the Quote. 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 or allow access to the Delivery Location upon the date quoted for delivery of the Goods.
5.6. If the Customer fails to accept delivery of the Goods within two 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 second 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).
5.7. If fifteen Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, except where such delay is caused by a Force Majeure Event, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
6. QUALITY OF GOODS
6.1. The Supplier warrants that at the time of delivery the Goods shall:
(a) conform with their description in the Goods Specification; and
(b) be free from material defects in design, material and workmanship.
6.2. Save as expressly provided in these terms all warranties, conditions or other terms implied by statute or common law are hereby excluded.
6.3. Subject to Clause 6.4, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods within 6 months of delivery of the Goods in full if:
(a) the Customer gives notice in writing within 10 Business Days of discovering the defect that some or all of the Goods do not comply with the warranty set out in Clause 6.1 and provides photographic evidence of such defect;
(b) the Supplier is given a reasonable opportunity to examine 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.
6.4. The Supplier shall not be liable for the Goods’ failure to comply with the warranty in Clause 6.1 if (and shall not be required to attend on site to any call-out if it is apparent that):
a) the Customer has made any further use of such Goods after giving a notice in accordance with Clause 6.3;
b) the defect has arisen because the Customer failed to follow the Supplier’s oral or written instructions as to the use or maintenance of the Goods;
c) the Customer has not entered into a Contract for the provision of the Maintenance Services and/or has not paid any sum that is properly due to the Supplier under a Contract;
d) the defect has arisen as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
e) the Customer has altered or repaired such Goods without the written consent of the Supplier;
f) the defect has arisen as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
g) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.5. The Supplier shall be entitled to invoice the Customer for, and the Customer shall be obliged to pay, a charge equal to the Supplier’s prevailing call-out rate for any call-out that has been made where it is found that any of the circumstances set out in Clause 6,4 apply.
6.6. Except as provided in this Clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Clause 6.1.
6.7. These terms shall apply to any repaired or replacement Goods supplied by the Supplier.
6.8. The Supplier does not accept any responsibility for damage or loss to the Goods sustained in transit.
7. INSTALLATION AT PREMISES
7.1. All works to install any Goods shall be executed during the Supplier’s business hours (being 9am-5pm Monday to Friday) or shall incur additional costs in line with the Supplier’s usual rates as notified by the Supplier from time to time, and the Customer shall ensure that the Supplier has uninterrupted access to the Premises to undertake any installation work. In the event the Customer requires the Supplier to carry out any installation works outside of the Supplier’s business hours, installation will be charged at double the Supplier’s usual rates.
7.2. Making good channelling, fitting or replacing floor boards providing cavities for control panels or any other building or decorative work is excluded from the Supplier’s obligations unless otherwise specified.
7.3. All price quotations are based on an assumption there will be free access to all areas concerned and work to be carried out in one continuous site visit. Any extra visit brought about by the Customer’s changed requirements or alterations or failure to allow such free access will be charged at the Supplier’s day work rates applicable from time to time.
7.4. In the event that any special lifting gear, erection or handling is required due to circumstances the Supplier could not reasonably foresee, then the Supplier reserves the right to charge for the expenses thereof and the extra work time involved at the Supplier’s usual rates.
7.5. Any complaint about the workmanship, finish or performance of the installation or Goods supplied must be reported to the Supplier within five Business Days of delivery or completion of the installation.
8. TITLE AND RISK
8.1. The risk in the Goods shall pass to the Customer on completion of delivery.
8.2. 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 from the Customer.
8.3. Until title to the Goods has passed to the Customer, the Customer shall:
(a) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(b) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(c) notify the Supplier immediately if it becomes subject to any of the events listed in Clause 16.2(b) to Clause 16.2(d); and
(d) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
8.4. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Clause 16.2(b) to Clause 16.2(d) then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and 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.
9. SUPPLY OF MAINTENANCE SERVICES
9.1. The Supplier shall supply the Maintenance Services to the Customer as set out in the Service Agreement Quote.
9.2. The Maintenance Services shall commence on the Commencement Date and shall be provided for the Initial Term and any Renewed Terms.
9.3. The Maintenance Services will not include anything that is not specifically detailed in the Maintenance Specification. Any additional maintenance will incur additional charges.
10. CUSTOMER’S OBLIGATIONS
10.1. The Customer shall:
(a) ensure that the details of the Goods Specification meet its requirements;
(b) co-operate with the Supplier in all matters relating to the Goods and the Maintenance Services including but not limited to ensuring there is a smooth and timely handover from any previous suppliers of services similar to the Maintenance Services and resolving any disputes with any such suppliers;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Premises as reasonably required by the Supplier to provide the Goods;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Goods, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Premises for the supply of the delivery and installation of the Goods in accordance with any instructions of the Supplier including but not limited to ensuring appropriate access to power sources;
(f) advise the Supplier of the existence of any concealed pipes, wires and cables for water, gas, electricity, telephone or otherwise in advance of the Supplier commencing any work under the Contract. The Supplier shall accept no liability for damage to such pipes, wires and cables or for any related loss, damage or injury howsoever caused, where no notice has been provided to the Supplier. The Customer shall fully indemnify the Supplier against any claim for any loss, damage or injury resulting from any damage to pipes, wires and cables on the Premises;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Maintenance Services or the installation of any Goods;
(h) comply with all applicable laws, including health and safety laws;
(i) 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;
(j) provide all reasonable co-operation, assistance, access to all areas and all resources/utilities of the Premises so as to enable the Supplier to conduct the Maintenance Services; and
(k) comply with any additional obligations as set out in the Quote.
10.2. If the Customer fails to comply with any obligation set out in clause 10.1 then the Supplier reserves the right to increase its charges for Maintenance Services or charge a reasonable fee for the installation of Goods.
10.3. 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 delivery and installation of the Goods or performance of the Maintenance 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 Supplier’s failure or delay to perform any of its obligations as set out in the Contract; 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.
11. CHARGES AND PAYMENT
11.1. The price for Goods shall be the price set out in the Quote.
11.2. Unless specified otherwise in the Quote, all Quotes are provided on the basis that the delivery of the Goods and/or the commencement of the installation works and/or Maintenance Services shall be within 90 days of the provision of the Quote and that the completion of the installation works and/or Maintenance Services shall be within 90 days of commencement.
11.3. The Customer shall pay a 50% deposit on its acceptance of the Quote or instructing the Supplier to provide the Goods and/or Maintenance Services or such higher or lesser percentage (if any) as the Supplier shall specify. The balance of the price after the deposit has been paid (if any) shall be invoiced to the Customer on or at any time after delivery of any Goods or if the Customer cancels the Order before delivery upon the date of such cancellation.
11.4. The price for Goods shall be exclusive of all costs and charges of transport and delivery of the Goods, which shall be invoiced to the Customer.
11.5. The charges for Maintenance Services shall be as set out in a Services Agreement Quote (subject to clauses 10.2 and 11.4) and invoiced at the frequency set out in such Services Agreement Quote.
11.6. The Supplier reserves the right to:
(a) increase the charges for the Maintenance Services:
(i) on an annual basis with effect from each anniversary of the Commencement Date in line with the retail prices index or any index replacing it (“RPI”) by giving at least one months’ written notice to the Customer; or
(ii) at any time if the Customer changes the Goods which are being maintained or otherwise seeks to vary the Maintenance Services,
(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 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 or Delivery Location.
(c) increase the charges for the Maintenance Services and/or increase the price of the Goods, by giving notice to the Customer to reflect any increase in the Supplier’s costs if and to the extent that there is a delay which is not caused by the Supplier in the:
(i) commencement of the installation works and/or Maintenance Services; and/or
(ii) completion of the installation works and/or Maintenance Services following commencement; and/or
(iii) delivery of the Goods.
11.7. If an Order is accepted and then delayed the full price of the Goods (including any increase that has been applied pursuant to Clause 11.6(c)(iii)) shall become due for payment in accordance with Clause 11.10.
11.8. If an engineer is booked to site but the site is not ready as a result of anything which is not caused by the Supplier (including but not limited to the Customer’s or other third party’s works being incomplete) an additional charge shall be made equal to the Supplier’s prevailing call-out rate for any additional visit/s that is/are required.
11.9. In the circumstances set out in Clause 11.6(c), in the alternative to increasing the Charges, the Supplier shall be entitled to cancel the Order and, without any obligation to do so, provide a new Quote for the Customer to consider and accept or reject. If the Supplier cancels the Order, it shall either deliver the Goods to site, or retain them and issue a refund to the Customer of any amounts that it has paid less the Supplier’s costs for materials, its time and any cancellation fees that it has incurred with the manufacturer or third-party supplier of the relevant Goods (“Supplier’s Costs”). If applicable, the Supplier shall invoice the Customer for, and the Customer shall pay, the amount by which the Supplier’s Costs exceed the amounts paid by the Customer.
11.10. The Supplier reserves the right to charge additional fees in relation to any incidental charges incurred by the Supplier in the provision of the Maintenance Services including but not limited to, Ultra Low Emission Zone charges, Congestion Charges and any parking fees.
11.11. Time for payment shall be of the essence of the Contract. The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 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; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier. Any changes to the Supplier’s nominated bank shall be instructed by a Director of the Supplier in writing and the Customer should confirm any such instruction that it receives by contacting the Supplier’s Head Office on 020 7228 7777. The Customer shall take reasonable steps to check the validity of all payments which it makes or purports to make to the Supplier include verifying the company name and account details using the Customer’s banking system prior to making payment. The Supplier cannot accept any responsibility for any payments that are made in error to anyone other than the Supplier and the Customer would have to pay the Supplier in full if any such errors are made.
11.12. 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 Maintenance Services or Goods at the same time as payment is due for the supply of the Maintenance Services or Goods.
11.13. 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 16 (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 11.13 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%.
11.14. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction, withholding (other than any deduction or withholding of tax as required by law) or otherwise.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. Any and all Intellectual Property Rights in or arising out of or in connection with the Goods and/or Maintenance Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
12.2. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the Term for the purpose of providing the Maintenance Services to the Customer.
12.3. The Customer shall fully indemnify and hold harmless the Supplier against any and all loss, liability, costs, damage and expenses awarded against or incurred by the Supplier in connection with or in settlement of any claim for infringing a third party Intellectual Property Right resulting from the Supplier’s use of any instruction, specification or material supplier by the Customer.
13. DATA PROTECTION
13.1. Each party acknowledges that the parties, acting as Controllers, may be required to disclose Personal Data to each other in order to facilitate the provision of the Services by the Supplier to the Customer.
13.2. Each party shall comply with all obligations imposed on a Controller under the Data Protection Legislation.
13.3. In the event a party acts as a Processor to the other party (acting as Controller), that party shall:
(a) Process that Personal Data only on the documented written instructions of the Controller unless the Processor is required by any applicable law to otherwise Process that Personal Data. Where the Processor is relying on an applicable law as the basis for Processing Personal Data, the Processor shall promptly notify the Controller of this before performing the Processing required by the applicable law unless that applicable law prohibits the Processor from so notifying the Controller;
(b) ensure that it has in place appropriate technical and organisational measures 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;
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential in accordance with the Contract;
(d) not transfer any Personal Data outside of the United Kingdom;
(e) assist the Controller 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;
(f) notify the Controller without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Controller, delete or return Personal Data and copies thereof to the Controller in accordance with the Contract or on termination of the Contract unless required by Applicable Law to store the Personal Data;
(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 13.3 and allow for audits by the Controller or the Controller’s designated auditor and immediately inform the Controller if, in the opinion of the Processor, an instruction infringes the Data Protection Legislation; and
(i) not appoint any third party processor of Personal Data under the Contract without the prior written consent of the Controller.
14. CONFIDENTIALITY
14.1. 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 and in the case of the Customer any details within a Quote or Specification (“Confidential Information”), except as permitted by clause 14.2.
14.2. Each party may disclose the other party’s Confidential Information: to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract (provided they are adhere to the confidentiality obligations contained in this clause 14 and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3. Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
15. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
15.1. The Supplier has obtained the following insurance cover in respect of its own legal liability:
(a) employer’s liability – £10,000,000 for any one occurrence;
(b) public and products liability – £5,000,000 for any one occurrence but in the aggregate in respect of products;
(c) contract works – £250,000; and
(d) professional indemnity insurance – £1,000,000.
The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for its own insurance including any excess loss.
15.2. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(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).
15.3. Subject to clause 15.2, the Supplier’s total liability to the Customer in any contract year shall not exceed an amount equal to the sums payable by the Customer under the Contract in such contract year.
15.4. The following types of loss are subject to clause 15.2 wholly excluded by the parties:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
15.5. Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire twelve months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
15.6. This Clause 15 shall survive termination of the Contract.
16. TERMINATION
16.1. The Supplier shall, without affecting any other right or remedy available to it, terminate the Contract by giving the Customer not less than one month’s written notice.
16.2. 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 30 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;
(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.
16.3. 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.
17. CONSEQUENCES OF TERMINATION
17.1. 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 Maintenance 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; and
(b) the Customer shall return all of the Supplier Materials and any 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 the Contract.
17.2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
17.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
18. SUB-CONTRACTING
The Supplier shall be entitled to sub-contract all or any of its obligations under all or any part of the Contract.
19. 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 a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non performance continues for 4 weeks, either party may terminate the Contract by giving 5 Business Days’ written notice to the other party.
20. GENERAL
20.1. Assignment and other dealings. 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. 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.
20.2. Notices. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, in English, addressed to the addresses at the beginning of the Contract (or such other address as that party may have specified to the other party in writing in accordance with this clause), and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, or email. Such notice shall be deemed to have been received: (i) if delivered personally, when left at the address; (ii) if sent by pre-paid first class or other next working day delivery service, at 9.00 am on the second business day after posting; (iii) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or (iv) if sent by email, at the time of transmission or if sent outside normal working hours of 9.00am to 5.00pm then at 9.00 am on the business day after transmission.
20.3. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
20.4. Waiver. A purported waiver is valid and binding only if made in writing. Granting extra time or comply or a delay in enforcement is not to be treated as a waiver unless and until made or confirmed expressly in writing.
20.5. 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.
20.6. Entire agreement. 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. 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. Nothing in this clause shall limit or exclude any liability for fraud.
20.7. Third parties rights. 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.
20.8. Variation. Except as set out in these terms, no variation of the Contract shall be effective unless it is agreed in writing and signed by the Supplier.
20.9. 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 and settled exclusively by courts of England and Wales.
