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Terms and Conditions (Sale and Purchase)

Terms and Conditions (Sale and Purchase)

SALE

1. DEFINITIONS AND INTERPRETATION

1.1. In these Conditions:

Applicable Laws any and all laws, legislation, statutes, regulations, bye-laws, decisions, notices, orders, rules (including any rules or decisions of court), local government rules, statutory instruments or other delegated or subordinate legislation and any directions, codes of practice issued pursuant to any legislation, and voluntary codes that are applicable to the sale and purchase of the Goods or the supply and purchase of the Services on these Conditions from time to time.
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Buyer means the customer identified in the Order.
Contract means each contract for the purchase and sale of the Goods and Services formed in accordance with Condition 3.
Confidential Information in relation to the Buyer or the Seller, all information and trade secrets relating to its business or customers which come into the possession of the other party pursuant to the Contract, whether orally, or in documentary, electronic or other form.
Data Protection Law all applicable laws and regulations, in each case pertaining to the security, confidentiality, protection or privacy of Personal Data, as amended or re-enacted from time to time, including (without limitation and to the extent applicable to the party subject to the relevant obligation) the GDPR and the Data Protection Act 2018.
Deliverables any documents, designs, drawings, artwork, images, diagrams, products, content and any other materials conceived or first reduced to writing or developed by Seller and provided to the Buyer, as part of or in connection with the Services.
Developed IPR any Intellectual Property Rights created or developed by the Seller in the course of producing any bespoke Goods or Deliverables developed by the Seller specifically for the Buyer and in accordance with designs or specifications provided by the Buyer.
GDPR the European General Data Protection Regulation, namely Regulation (EU) 2016/679.
Goods means the goods (including any instalments, component, part of or raw materials used in such goods) described in the Order.
Incoterms means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made.
Insolvency Event each and any of the following in relation to the Buyer or the Seller (being the Relevant Party):

(a) any action (corporate or otherwise), legal proceedings or other procedure or step is taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Relevant Party (except that no right to terminate will arise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction); (ii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of the Relevant Party or any of its assets; (iii) the enforcement of any security over any assets of the Relevant Party; or (iv) the expropriation, attachment, sequestration, distress or execution over or affecting any material asset of the Relevant Party;

(b) the Relevant Party is unable to pay its debts as they fall due or is insolvent;

(c) the Relevant Party enters into a composition or arrangement with its creditors or any class of them;

(d) the Relevant Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or (e) the commencement of any analogous procedure or step in relation to the Relevant Party in any jurisdiction other than England and Wales.
Intellectual Property Rights patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade 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 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, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world
Order an order in writing (including email) for Goods and/or Services issued by the Buyer and accepted by the Seller in accordance with Condition 3.
Personal Data personal data as defined under GDPR..
Seller means Dellner Romag Limited (registered in England under number 12777481).
Services means the services (including any repair work or instalments) described in the Order.
Special Conditions means any special conditions governing the Contract in addition to these Conditions where agreed in writing by the Seller and annexed hereto.

 

1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3. References to include, includes, including and included shall be construed without limitation to the generality of the preceding words.

1.4. A reference to indemnify means on demand to indemnify and keep indemnified, and hold harmless, the party to be indemnified on an after tax basis.

1.5. References to any statute or any section of any statute include any statutory amendment, modification or re-enactment and instruments and regulations under it in force from time to time, unless the contrary is stated. References to any rules, regulations, codes of practice or guidance include any amendments or revisions from time to time.

1.6. Condition headings are inserted only for convenience and are in no way to be construed as part of these Conditions.

1.7. Unless the context otherwise requires, the terms controller, processor, processing/process, personal data and data subject shall be interpreted and construed by reference to Data Protection Law.

1.8. References to a law of the European Union include a reference to that law as incorporated into the laws of the United Kingdom at any time before or after the United Kingdom ceased to be a Member State of the European Union.

2. BASIS OF THE SALE

2.1. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom or course of dealing.

2.2. These Conditions, together with the Special Conditions (if any) and the Order constitute the entire agreement between Buyer and Seller for the supply of the Goods and the Services and extinguish all previous agreements, arrangements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. If there is any conflict or inconsistency between these Conditions and the Special Conditions, the Special Conditions shall prevail to the extent of the conflict or inconsistency. 

2.3. The Seller’s employees or agents are not authorised to make any representation concerning the Goods or Services unless confirmed by the Seller in writing, and the Buyer undertakes not to rely on, and hereby waives any claim for breach of, any unconfirmed representation which is not made fraudulently.

2.4. Any advice or recommendation given by the Seller or its employees or agents to the Buyer as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk.

2.5. Any prices, charges, samples, drawings, descriptions, or advertising of or relating to goods or services available from the Seller or issued or published by the Seller, including those contained in catalogues, brochures or on a website (all or any of these forms of communication being Promotional Material), are issued or published in order to give an idea of the goods or services described in them and the associated charges or prices (as appropriate), and they shall not form part of the Contract or any other contract of sale of the Goods or the supply of Services, or any agreement to sell the Goods or supply the Services, between the Seller and the Buyer, or any collateral contract.

2.6. The Seller is not bound by, and hereby excludes liability for, any error in or omission from (other than a fraudulent one) Promotional Material which is manifest or which ought reasonably to be considered apparent to the Buyer, and the Buyer undertakes not to rely on any such error or omission, or to enforce rights or bring any claim against the Seller on the basis of the Promotional Material to the extent of such error or omission.

3. QUOTATIONS, ORDERS AND SPECIFICATIONS

3.1. A quotation or any similar communication by the Seller is not an offer to sell or supply any goods or services, unless it is in writing and expressly described as an offer.

3.2. A quotation or any similar communication is valid only for the period stated in it, and in the absence of a period stated, for 30 days only and is subject to withdrawal or revision by the Seller at any time prior to dispatch.

3.3. Each Order for either or both Goods and Services by the Buyer is an offer by the Buyer to purchase either or both Goods and Services subject to these Conditions.

3.4. No Order submitted by the Buyer is accepted by the Seller until the Seller confirms its written acceptance or (if earlier) the Seller delivers the Goods or supplies the Services to the Buyer. Acceptance of an order in accordance with this Condition 3.4 shall result in a Contract. 

3.5. The Buyer must ensure that the terms of any Order (including any specification) are complete and accurate and that it provides the Seller with any necessary information relating to the Goods and Services within a sufficient time to enable the Seller duly to perform the Contract. The Seller shall be released from its obligations under the Contract to the extent that the Buyer has not complied with this Condition 3.5.

3.6. The Seller reserves the right to make any changes in the specification of the Goods or Services which are required for the Goods or Services to conform with any Applicable Laws which do not materially affect their quality or performance.

4. CANCELLATION AND DELAY

4.1. No Order may be cancelled by the Buyer except with the Seller’s written agreement and on terms that the Buyer shall indemnify the Seller against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation. Provided the Seller acts reasonably and in good faith, and provides prompt written notice to the Buyer, the Seller may cancel an Order without incurring any liability to the Buyer. 

4.2. If the Buyer extends or delays the Contract or fails to take delivery of any Goods or the Services at the agreed time or (if no time is agreed) within a reasonable time then the Buyer shall indemnify the Seller against all loss (including loss of profit), costs (including the cost of storage and all labour and materials used), damages, charges or expense incurred by the Seller as a result of such extension, delay or failure.

5. PRICE

5.1. The price of the Goods and Services is the Seller’s quoted price.

5.2. Any price quoted by the Seller for the Goods is exclusive of the cost of delivery to the Buyer (including transport, non-standard packaging, insurance and any taxes, duties or surcharges).

5.3. The price is exclusive of any applicable VAT or any similar taxes, levies or duties which will be charged at the rate applicable when invoiced. 

5.4. All prices are (unless otherwise agreed) subject to variation at any time to reflect corresponding variations in the Sellers own costs and expenses including but not limited to the cost of materials, 5 fuel, labour and transport, and the Seller reserves the right to increase the price of the goods before delivery to that ruling at the date of despatch.

6. PAYMENT

6.1. Unless notified otherwise, payment of the price for the Goods and Services is due 30 days following the date of the relevant invoice.

6.2. Time of payment is of the essence. 

6.3. Any amount due to the Seller is not to be taken to have been made or received for the purposes of the Contract unless and until the amount is received by the Seller in cleared funds.

6.4. Payment by the Buyer shall be made (subject to clause 22.2) in pounds sterling (GBP) and without any deduction or set off. 

6.5. Interest at an annual rate of 4% above the applicable Barclays Bank plc base rate will accrue daily (both before and after judgement) and be calculated on a daily basis on overdue accounts from the date of invoice until payment.

6.6. Despite any provision allowing credit, payment is due and payable to the Seller immediately upon cancellation or termination of the Contract. 

6.7. The Seller shall be entitled to payment for all instalments of Goods delivered to the Buyer, whether under a blanket order or otherwise.

6.8. If the Buyer fails to make any payment on the due date then the whole price of all goods or services bought or agreed to be bought by the Buyer shall be immediately due and payable without demand and the Seller may: 

    6.8.1. cancel the Contract or suspend deliveries or performance to the Buyer; and/or

    6.8.2. appropriate any payment made by the Buyer to such of the Goods or Services (or the goods or services supplied under any other contract between the Buyer and the Seller) as the Seller thinks fit. 

6.9. The Seller is entitled to set off sums owed by the Seller to the Buyer against sums owed by the Buyer to the Seller.

7. DELIVERY

7.1. Delivery to the Buyer will be in accordance with instructions given and the Seller may at its sole discretion make such additional charges as are fair and reasonable in respect of such delivery.

7.2. Whenever possible Goods will be delivered by road vehicle to the Buyer’s warehouse or works. Additional carriage charges in accordance with rates current at the time of despatch may be applied if special delivery arrangements (e.g. packed consignments to destinations other than to the Buyer’s normal warehouse or works, to remote areas, or in small batches) are required. 

7.3. The Seller will deliver goods within the standard intolerances stated within the Seller’s literature.

7.4. Where delivery is affected by the Seller it will be deemed to have been completed when the Goods are ready to be off-loaded at the place of delivery. Off-loading shall be the entire responsibility of the Buyer, and the Seller accepts no liability for damage to the Goods during offloading. 

7.5. Where delivery is undertaken by the Seller any complaint in respect of short delivery or for damaged goods must be notified within 3 days of receipt and confirmed in writing at that time and any claim for non-delivery must be made within fourteen days of invoice date.

7.6. The Buyer must examine the goods before signature of any packing note and failure by the Buyer to express dissatisfaction with the Goods having given a clear signature for them will disentitle the Buyer from making any claim against the Seller or the carrier in respect of any damage to the Goods.

8. RISK AND PROPERTY

8.1. The Goods remain the property of the Seller until:

     8.1.1. their full price has been received by the Seller; and

     8.1.2. all other sums which are or which become due from the Buyer on any account with the Seller have been received by the Seller.

8.2. If payments received from the Buyer are not stated to refer to a particular invoice the Seller may appropriate such payments to any outstanding invoice.

8.3. Risk of loss or damage to the Goods passes to the Buyer on delivery.

8.4. Until ownership of the Goods passes to the Buyer, the Buyer must: 

     8.4.1. hold the Goods as the Seller’s fiduciary bailee;

     8.4.2. store them at its own cost on its premises separately from any other goods and in a manner which makes them readily identifiable as the goods of the Seller; 

     8.4.3. not destroy, deface or obscure any identifying mark or packaging of the Goods;

     8.4.4. maintain the Goods in a satisfactory condition insured on the Seller’s behalf for their full price against all risks; and 

     8.4.5. hold the proceeds of insurance referred to in Condition 8.4.4 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn account. 

8.5. The Seller may at any time recover or resell the Goods until they are owned by the Buyer.

8.6. In order to verify the Buyer’s compliance with its obligations under Condition 8.4 and to exercise its rights under Condition 8.5, the Seller shall be entitled by its employees or agents without notice to enter the Buyer’s premises and the Buyer shall at the request of the Seller procure the right for the Seller, its employees or agents to enter any premises of a third party where the Goods are stored for the purpose of this Condition 8.6.

8.7. The Buyer’s right to possession of the Goods terminates immediately if any of the events set out in Condition 20 occurs. 

8.8. If the Goods shall be sold by the Buyer before payment for them has been made that part of the proceeds of sale which represents or is equivalent to the amount owed by the Buyer to the Seller shall be held by the Buyer upon trust for the Seller and shall be paid into a separate bank account designated for that purpose. The Seller shall be entitled to trace the proceeds of any such sale(s) into such bank account (or wherever such proceeds may in fact be located) and the Buyer authorises the Seller to make enquiries of its bankers (or otherwise as appropriate) relating to such proceeds.

8.9. The Buyer shall ensure that the Goods are not incorporated in or mixed with or used as part of other goods before full payment for the Goods has been made to the Seller, although if such incorporation or mixing takes place, the property in those Goods which remain identifiable and/or severable from such other goods shall remain with the Seller until payment has been made or such other goods have been sold and all the Seller’s rights in the Goods shall extend to such part of those other goods and to their proceeds of sale, which shall be held by the Buyer in accordance with Condition 8.8.

9. RESALE OF GOODS

9.1. It is the responsibility of the Buyer to ensure that no marking or label affixed to the Goods referring the user to the Seller’s instructions and/or recommendations for use is removed, tampered with or disfigured in any way.

9.2. If any item comprised in the Goods is resold by the Buyer, the Buyer shall:

     9.2.1. bring to the purchaser’s attention all the Seller’s instructions and/or recommendations for use which are packed with or appearing on the Goods or which the Seller has notified to the Buyer; and 

     9.2.2. be responsible for providing full and accurate translations in all relevant languages where the Goods go overseas.

10. SIZES

10.1. All sizes are quoted in metric measurements. Imperial sizes will be translated to the nearest metric equivalent.

10.2. Glass panes not exceeding 0.25 m² will be charged at 0.25 m².

10.3. All prices are for clean rectangles.

10.4. Ovals, circles or irregular shapes will be charged the full size of the rectangular pane from which they are cut. 

10.5. Notches and cut-outs, edgeworking or drilling will be charged in addition.

10.6. On all orders, for the purpose of pricing, each measurement of less than 5 mm will be rounded down and of 5 mm or more will be rounded up to the nearest centimetre. 

11. QUALITY

11.1. The Seller warrants, for a period of twelve (12) months from the date of delivery of the Goods, that subject to Condition 11.5, the Goods shall be:

     11.1.1. free from defects in materials and workmanship;

     11.1.2. in accordance with the Order; and

     11.1.3. in accordance with any specification provided by the Seller or provided by the Buyer and expressly agreed to in writing by the Seller, together, the Warranty.

11.2. The Buyer’s rights under the Warranty are subject to and conditional upon observance of the following conditions: 

     11.2.1. the Warranty shall not be assigned or transferred unless the Seller’s consent in writing has first been obtained;

     11.2.2. the Seller shall be notified at the time of the defect is discovered and shall be given an opportunity to examine the Goods concerned before they are removed from the location at which the Buyer, or the relevant customer in the supply chain, was using the Goods at the time that the defect was discovered.

11.3. The Services shall be provided in accordance with the Order, with reasonable skill and care and Applicable Laws.

11.4. The Seller shall not be liable under the Warranty or otherwise for any direct or indirect loss whatsoever arising out of any defect in the Goods or any part thereof. 

11.5. The Seller is not liable under the Warranty where:

     11.5.1. the price has not been paid in full and for so long as it or part of it remains outstanding; 

     11.5.2. a defect arises from any or all of the following:

          (a) fair wear and tear;

          (b) the Goods conforming with information, drawings or specifications supplied by or on behalf of the Buyer; 

          (c) (without prejudice to clause 14.1) the Buyer failing to conduct reasonable checks to ensure that any drawings or detailed specifications produced by the Seller by reference to instructions or specifications provided by the Buyer are consistent with the Buyer's requirements; 

          (d) alteration of the Goods (other than by or on behalf of the Seller) 

          (e) repair of the Goods (other than by or on behalf of the Seller); 

          (f) failure to follow or to follow fully Seller’s instructions (whether oral or written) or maintenance requirements;

     11.5.3. the Goods have been improperly installed or connected (unless the Seller carried out the installation and connection); or

     11.5.4. more than twelve (12) months have elapsed since the date of delivery of the Goods in question.

11.6. Unless specified and with the exception of the backing glass used for low spall glasses, all glass shall be of float quality.

11.7. The Seller will not accept a Buyer’s own glass for laminating without prior written agreement but if such an agreement is made the Seller accepts no responsibility for accidental breakages when handling or working the Buyer’s own glass. 

11.8. All Goods supplied by the Seller are supplied on the basis that they are not required for any special purpose different from the usual purpose for which such goods are supplied and the Buyer shall be deemed to have full knowledge of the nature and properties of the Goods supplied and any hazards they involve and the proper treatment, storage and handling thereof. In particular Goods are supplied on the basis that they shall be used in normal conditions appropriate for such Goods and shall be properly maintained. Guidelines for handling, storing and installation of the Goods are available from the Seller.

12. TEMPLATES

12.1. If a Buyer orders goods to be supplied to a template and the template dimensions differ from those specified in associated documents or correspondence or verbal instructions the order will be executed to the dimensions of the template, and the Seller accepts no liability for any such difference or variation. Buyer’s templates must always be of hardboard.

13. SPECIFICATION INFORMATION

13.1. Where the Contract provides that the Seller is to supply or manufacture Goods to the Buyer’s specification the Buyer shall be under an obligation to provide the Seller with sufficient accurate information, drawings and the like to enable the Seller to perform the Contract. The Seller shall not be liable for any defect in such Goods which arises out of any failure or defect in any 9 materials, design or specification supplied or specified by or on behalf of the Buyer and the Warranty shall not apply to such Goods.

13.2. The Seller shall not be under any liability in respect of descriptions, specifications, weights or dimensions or other matters in relation to Goods contained in any material such as forwarding specifications, drawings, price lists, catalogues, trade publications and advertising matters, other than in the Contract itself.

13.3. The Seller shall be entitled without notice (save where the Seller is working to the Buyer’s specification as provided in Condition 13.1 above in which case it shall consult with the Buyer) to make changes in dimensions, materials and designs which it thinks reasonable or desirable without affecting the validity of the Contract. The Buyer shall have no cause of action in respect of any such change.

14. ALTERATIONS

14.1. It is the Buyers responsibility to scrutinise order acknowledgements to ensure that its requirements have been correctly interpreted as after manufacture has commenced alterations may be impossible.

15. DEFECTS

15.1. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or Services or their failure to correspond with any specification referred to in Condition 11.1.3 must (whether or not delivery is refused by the Buyer) be notified to the Seller and the Buyer's carriers within seven days from the date of delivery or performance or, where the defect or failure was not apparent on reasonable inspection, within the period of the Warranty set out in Condition 11.1.. 

15.2. In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Buyer to reject them. 

15.3. If the Buyer does not notify claims in accordance with Condition 15.1 then:

     15.3.1. the Buyer shall not be entitled to reject the Goods and/or Services; and

     15.3.2. the Seller shall have no liability for such defect or failure; and

     15.3.3. the Buyer shall be bound to pay the full price for the Goods and/or Services.

15.4. In the event the Buyer has a valid claim which has been notified to the Seller pursuant to Condition 15.1, the Seller shall be entitled to repair or replace the Goods or carry out the Services again (or the part or element in question) free of charge or, at the Seller’s option, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. 

16. LIMITATION OF LIABILITY

16.1. Nothing in these Conditions shall exclude or limit the liability of any party for:

     16.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); 

     16.1.2. fraud or fraudulent misrepresentation; and

     16.1.3. any matter in respect of which it would be unlawful to exclude or restrict liability.

16.2. The Seller shall not under any circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

     16.2.1. any loss of profit, loss of revenue, loss of goodwill or loss of anticipated savings (whether direct or indirect); or

     16.2.2. any loss that is an indirect or secondary consequence of any act or omission of the Seller.

16.3. Subject to Conditions 16.1 and 16.2, the total liability of the Seller in respect of all loss or damage arising under or in connection with each Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed an amount equal to all amounts paid under the relevant Contract. 

16.4. All warranties, conditions or terms not set out in the Contract and which would otherwise be implied or incorporated into the Contract by statute, common law or otherwise (other than as to statutory interest, and title to goods) are hereby excluded except to the extent they may not be excluded or limited by law. 

17. DATA PROTECTION

17.1. Each party shall at all times comply with Data Protection Law in respect of any Personal Data received from the other party pursuant to the Contract ("Shared Personal Data"). Subject to Data Protection Law, the parties are of the view that any Shared Personal Data will be processed by the parties as independent (not joint) controllers.

17.2. Each party shall provide the other (the Requesting Party) with such reasonable assistance as is requested by the Requesting Party to enable the Requesting Party to comply with its obligations under Data Protection Law. 

18. INTELLECTUAL PROPERTY RIGHTS

18.1. Subject to clause 18.2 all Intellectual Property Rights in or arising out of or in connection with the Goods, Deliverables and the Services shall be owned by the Seller.

18.2. All Developed IPR shall be owned by the Buyer. 

18.3. All Intellectual Property Rights in any bespoke Goods or Deliverables developed by the Seller specifically for the Buyer under the Contract other than the Developed IPR shall be owned by the Seller The Buyer grants the Seller a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy, use and modify any materials provided by the Buyer to the Seller for the purpose of supplying the Goods and providing the Services to the Buyer.

19. INDEMNITY 

19.1. The Buyer agrees to indemnify the Seller against any damages, losses, costs, claims or expenses incurred by the Seller towards a third party arising out of or in connection with the Goods or Services supplied by the Seller or their operation or use and whether arising by reason of the negligence of the Seller or otherwise.

20. TERMINATION

20.1. Either party may by giving notice to the other terminate the Contract as from the date of expiry of the notice if the other commits a material breach of this Contract which is either incapable of remedy or, in the case of a breach capable of remedy, is not remedied within thirty (30) days after the terminating party has given notice containing details of the breach, and requiring the breach to be remedied.

20.2. Either party may at any time, by notice to the other, terminate this Contract as from the date of expiry of the notice if an Insolvency Event occurs in relation to the other.

20.3. Termination of the Contract shall not affect rights and duties accrued before termination and in particular shall not affect the Seller’s rights contained in Conditions 8 and 12, which survive termination of the Contract.

21. HEALTH AND SAFETY

21.1. The Buyer agrees to: 

     21.1.1. pay due regard to all information supplied by the Seller relating to the use of the Goods necessary to ensure the Goods will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work;

     21.1.2. comply with Applicable Laws;

     21.1.3. indemnify the Seller in respect of any and all claims arising from the Goods being unsafe as a result of the Buyer’s activities; and 

     21.1.4. monitor the safety of the Goods, to pass on to the Seller information as to the risks of the Goods and to co-operate in any action the Seller decides to take to avoid those risks.

22. EXPORT

22.1. Where the Goods are to be exported to the Buyer the provisions of this Condition 22 shall apply.

22.2. Payment shall be made in pounds sterling (GBP) or such currency as is agreed in writing by the Seller.

22.3. Where required by the Seller, the Buyer will establish and maintain in favour of the Seller an irrevocable letter of credit which shall: 

     22.3.1. be confirmed by a UK clearing bank;

     22.3.2. be payable on drafts drawn at sight upon presentation to the bank by the Seller of a certified copy of the Seller’s invoice; 

     22.3.3. be established at least 30 days prior to anticipated shipment date; 

     22.3.4. cover the full price of the Goods (including applicable taxes); and 

     22.3.5. be transferable

22.4. All bank charges and other expenses in relation to the letter of credit shall be paid by the Buyer.

22.5. The Buyer shall be responsible for complying with any Applicable Laws governing the importation of the Goods into the country of destination and for the payment of any duties on the Goods. 

22.6. Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered EX Works (as that term is defined in Incoterms) and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

22.7. If there is any conflict between Incoterms and the Contract, the terms of the Contract prevail.

23. FORCE MAJEURE

23.1. Provided it has complied with Condition 23.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract (Affected Party) by any circumstance not within its reasonable contemplation or control (Force Majeure Event), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the 12 performance of such obligations. The time for performance of such obligations shall be extended accordingly. 

23.2. The Affected Party shall: 

     23.2.1. as soon as reasonably practicable after the start of the Force Majeure Event but no later than three (3) days from its start, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract;

     23.2.2. use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations; and 

     23.2.3. as soon as reasonably possible after the end of the Force Majeure Event, notify the other party that the Force Majeure Event has ended and resume performance of its obligations under the Contract. 

23.3. If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than fourteen (14) days the party not affected by the Force Majeure Event may terminate the Contract by giving notice in writing to the Affected Party.

24. CONFIDENTIALITY

24.1. Each party undertakes to the other in relation to the Confidential Information of the other:

     24.1.1. to keep confidential all Confidential Information; 

     24.1.2. not to disclose Confidential Information without the other’s prior written consent to any other person except those of its employees who have a need to know the Confidential Information;

     24.1.3. not to use Confidential Information except for the purposes of performing its obligations under the Contract (and in particular not use Confidential Information to obtain a commercial, trading or any other advantage); and 

     24.1.4. to keep separate from all other information all Confidential Information in its possession or control. 

24.2. The provisions of Condition 24.1 shall not apply to Confidential Information to the extent that it is or was: 

     24.2.1. already in the possession of the other free of any obligation of confidentiality on the date of its disclosure; 

     24.2.2. in the public domain other than as a result of a breach of this Condition 24;

     24.2.3. required to be disclosed:

          (a) pursuant to Applicable Law, or the rules of any exchange on which the securities of a party are or are to be listed; or

          (b) in connection with proceedings before a court of competent jurisdiction or under any court order or for the purpose of receiving legal advice, but only to the extent and for the purpose of that disclosure.

24.3. Each party acknowledges that Confidential Information is valuable and that damages might not be an adequate remedy for any breach of Condition 24 and accordingly a party will be entitled, without proof of special damage, to an injunction and other equitable relief for any actual or threatened breach of Condition 24.

25. GENERAL

25.1. Any notice to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid recorded delivery or by email. Delivery by courier shall be regarded as delivery by hand. Notices shall be sent to the registered office or principal place of business of the Seller or the Buyer (as applicable). 

25.2. Notices shall be deemed to have been received if :(i) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (ii) sent by pre-paid recorded delivery 48 hours from the date of posting; or (iii) delivered by email, at the time of sending, provided that no automated notification informing the sender that the message has not been delivered has been received by the sender; provided that if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice is deemed to have been received at 9am on the next Business Day.

25.3. The Seller is a member of a group of companies and accordingly the Seller may perform any of its obligations or exercise any of its rights by itself or through any other member of its group. 

25.4. Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller, whether or not under the Contract.

25.5. If any provision of the Contract is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of the Contract which shall continue in full force and effect. 

25.6. Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract.

25.7. Any waiver by the Seller of any breach by the Buyer is not a waiver of any subsequent breach.

25.8. The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of the Contracts (Rights of Third Parties) Act 1999.

26. ASSIGNMENT

26.1. The Seller may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it. 

26.2. The Buyer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.

27. GOVERNING LAW AND JURISDICTION 

27.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by and construed in accordance with the law of England and Wales. 

27.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).  

Related Pages:

PURCHASE

1. DEFINITIONS AND INTERPRETATION

1.1. In these Conditions:

Applicable Laws any and all laws, legislation, statutes, regulations, bye-laws, decisions, notices, orders, rules (including any rules or decisions of court), local government rules, statutory instruments or other delegated or subordinate legislation and any directions, codes of practice issued pursuant to any legislation and voluntary codes.
Bribe means (i) any payment, gift, benefit or advantage of any kind, which is offered, promised, given, authorised, requested, accepted or agreed, whether directly or indirectly (through one or more intermediaries) and whether as an inducement or reward, for any form of improper conduct by any person in connection with their official, public, fiduciary, employment or business role, duties or functions; and/or (ii) anything that would amount to an offence of bribery or corruption under Applicable Law; and Bribes, Bribed, Bribery, Bribing and other variants of Bribe shall be construed accordingly.
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Buyer means Dellner Romag Limited (registered in England under number 12777481).
Charges the charges for the Goods and/or Services to be paid by the Buyer as set out in the Order.
Contract means each contract for the sale and purchase of Goods and the supply of Services on these Conditions.
Commencement Date the date as set out in the Order.
Confidential Information in relation to the Seller or the Buyer, all information and trade secrets relating to its business or customers which come into the possession of each other pursuant to the Contract, whether orally, or in documentary, electronic or other form.
Data Processing Addendum the data processing terms attached to the Contract or, if no such terms are attached, the data processing addendum provided by the Buyer (as controller) to the Seller (as processor) from time to time.
Data Processing Details the description of the Personal Data processing activities contemplated by the Contract as set out in the Data Processing Addendum.
Data Protection Law all applicable laws and regulations, in each case pertaining to the security, confidentiality, protection or privacy of Personal Data, as amended or re-enacted from time to time, including (without limitation and to the extent applicable) the GDPR and the Data Protection Act 2018.
Delivery completion of delivery of an Order in accordance with Condition 8.2.
Delivery Location the location specified for delivery of an Order as set out in the Order.
Delivery Date the date specified for delivery of an Order as set out in the Order.
Deliverables all documents, products and materials developed by the Seller or its agents, subcontractors, consultants and employees in relation to the Services in any form including computer programs, data, reports and specifications (including drafts) to be delivered by the Seller as part of the Services.
Developed IPR any Intellectual Property Rights created or developed by the Seller in the course of producing any bespoke Goods or Deliverables developed by the Seller specifically for the Buyer and in accordance with designs or specifications provided by the Buyer.
Force Majeure Event any circumstance beyond a party's reasonable control including acts of God, flood, earthquake, windstorm or other natural disaster; epidemic or pandemic; war, threat of or preparation for war, riot, civil commotion, terrorist activities, fire, explosion, collapse of building structure; or any prohibition or restriction of any government or other legal authority which materially affects a party's ability to perform its obligations under the Contract and which is not in force at the date of the Contract.
GDPR the European General Data Protection Regulation, namely Regulation (EU) 2016/679.
Good Industry Practice the degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a highly skilled and experienced person supplying goods and/or performing services of the same (or materially similar) nature to the Goods and/or Services in compliance with all Applicable Laws and the terms of the Contract.
Goods the goods (including any instalment, component, part of or raw materials used in such goods) described in an Order.
Goods Specification any specification for Goods including any related plans and drawings as set out or referenced in the Order or otherwise agreed in writing by the Buyer and Seller.
Insolvency Event each and any of the following:

(a) any action (corporate or otherwise), legal proceedings or other procedure or step is taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Seller (except that no right to terminate will arise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction); (ii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of the Seller or any of the Seller's assets; (iii) the enforcement of any security over any of the Seller's assets; or (iv) the expropriation, attachment, sequestration, distress or execution over or affecting any of your material assets;

(b) the Seller is unable to pay its debts as they fall due or are insolvent; or

(c) the Seller enters into a composition or arrangement (whether under deed or otherwise) with its creditors or any class of them;

(d) the Seller ceases or threatens to cease to carry on business.
Intellectual Property Rights patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade 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 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, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
Milestones any agreed date by which a Deliverable and/or aspect of the Services shall be completed as set out in the Order, as part of the Services.
Order means the Buyer's order for Goods and/or Services.
Personal Data the personal data that is processed by Seller on behalf of the Buyer in accordance with the Contract, as further described in the Data Processing Details.
Seller means the seller identified in the Order.
Services means the services (if any), including without limitation any Deliverables to be provided by the Seller under the Contract as described in an Order.
Term the term of the Contract as stated on the Order.

 

1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3. References to include, includes, including and included shall be construed without limitation to the generality of the preceding words.

1.4. A reference to indemnify means on demand to indemnify and keep indemnified, and hold harmless, the party to be indemnified on an after tax basis.

1.5. References to any statute or any section of any statute include any statutory amendment, modification or re-enactment and instruments and regulations under it in force from time to time, unless the contrary is stated. References to any rules, regulations, codes of practice or guidance include any amendments or revisions from time to time.

1.6. Condition headings are inserted only for convenience and are in no way to be construed as part of these Conditions.

1.7. Unless the context otherwise requires, the terms controller, processor, processing/process, personal data and data subject shall be interpreted and construed by reference to Data Protection Law.References to a law of the European Union include a reference to that law as incorporated into the laws of the United Kingdom at any time before or after the United Kingdom ceased to be a Member State of the European Union.

1.8.  In the event of any conflict or inconsistency between these Conditions and the Order these Conditions shall prevail.

2. BASIS OF PURCHASE

2.1. The Order constitutes an offer by the Buyer to buy the Goods and/or the Services subject to these Conditions. Any offer and/or acceptance of an Order by the Seller shall be deemed to constitute an agreement to comply with these Conditions

2.2. The Order shall be deemed to be accepted on the earlier of:

    2.2.1. the Seller issuing a written acceptance of the Order;

    2.2.2. the Seller doing any act consistent with fulfilling the Order;

at which point the Contract shall come into existence.

2.3. These Conditions shall apply to each Contract to the exclusion of any other terms and conditions and any terms and conditions of any order acknowledgment, invoice or other instrument whatsoever issued by the Seller in connection with the Goods and/or the Services shall not be binding on the Buyer and shall not apply to the Contract.

2.4. No variation to an Order or these Conditions shall be binding unless agreed in writing by the Buyer's authorised representative.

3. SPECIFICATIONS FOR GOODS & EQUIPMENT

3.1. The quantity, quality and description of the Goods shall be as specified in the Order and the Seller shall supply the Goods in accordance with the Order.

3.2.  The Seller shall assign an order number to the Order and notify such order number to the Buyer. Each party shall use the relevant order number in all subsequent correspondence relating to the Order.

3.3. The Intellectual Property Rights in any specification produced or supplied by the Buyer shall be the Buyer's exclusive property.

3.4.  Goods made to the Buyer's specification shall not be manufactured for or supplied to any other party.

3.5. The Buyer shall be entitled to inspect and test the Goods during manufacture, processing or storage prior to despatch, and notwithstanding such inspection or testing the Seller shall remain fully responsible for the Goods and the inspection or testing shall not reduce or otherwise affect the Seller's obligations set out in the Contract and the Buyer shall have the right to conduct further inspections and tests after the Seller has carried out its remedial actions.

3.6. If following such inspection or testing the Buyer considers that the Goods do not conform or are unlikely to be as warranted under Condition 12.1, or otherwise are not in compliance with the Contract, the Buyer shall inform the Seller and the Seller shall immediately take such remedial action as is necessary to ensure that the Goods are or will be as warranted under Condition 12.1.

3.7. The Goods shall be marked in accordance with the Buyer's instructions (if any) and any Applicable Laws and requirements of the carrier and properly packed and secured so as to reach their destination in an undamaged condition.

3.8. All equipment paid for or provided by the Buyer shall be and remain the Buyer's property and must be returned to the Buyer in good condition upon request and shall not be copied or used for any purpose other than completion of the Order.

4. SERVICES

4.1. The Seller shall from the Commencement Date and for the duration of the Term provide the Services (if applicable) to the Buyer in accordance with the Contract.

4.2. In providing the Services the Seller shall:

    4.2.1. co-operate with the Buyer in all matters relating to the Services and comply with all instructions of the Buyer; and

    4.2.2. ensure that it and any of its personnel will not do anything to adversely affect the name, brand, trading image, reputation or business of the Buyer

4.3. Except as otherwise expressly provided in the Contract, the Seller shall be responsible at its sole cost and expense, for procuring, obtaining and making available, all such facilities, resources, personnel, information and materials necessary and/or appropriate to effectively and properly provide the Services.

4.4. Without prejudice to the rights and remedies of the Buyer, the Seller shall notify the Buyer if it becomes aware of anything which may have a material adverse effect on the ability of the Seller to comply with the terms of the Contract including but not limited to the performance of the Services.

5. PRICE

5.1. The Charges for the Goods and/or the Services shall be as stated in the Order and, unless otherwise so stated, are exclusive of VAT payable in the United Kingdom but are inclusive of: (i) all other sales taxes, value added taxes, goods and services taxes, business transfer taxes, withholding taxes or any other taxes, tariffs or duties now or in the future levied or imposed by any government authority in respect of the provision of the Goods and/or Services; and (ii) all other charges including the costs of packaging, shipping, insurance, carriage and delivery of the Goods.

5.2. The Charges for the Services shall be fully inclusive of any expenses incurred by the Seller in connection with the Services and the cost of any materials or services used by the Seller for the supply of the Goods and/or Services. No other fees, costs or expenses in addition to the Charges shall be payable except with the prior written approval of the Buyer.

5.3. Where the Goods are to be exported by the Seller to the Buyer payment shall be made in pounds sterling (GBP) or such other currency as is set out in the Order or otherwise agreed in writing between the parties, provided that to be applicable any such agreement must expressly state that it overrides the terms of this Condition 5.3.

5.4. No increase in the Charges may be made for any reason without the Buyer's prior written consent.

6. INFORMATION

The Seller shall provide to the Buyer such information about the Goods and any components, parts or raw materials used in manufacturing the Goods as the Buyer considers necessary including information relating to possible risks to health and safety and environment.

7. PAYMENT

7.1. The Buyer shall pay the Charges as set out in the Order.

7.2. The Seller shall assign an order number to the Order and notify the order number to the Buyer. Each party shall use the relevant order number in all subsequent correspondence relating to that Order.

7.3. The Buyer shall along with the Charges pay to the Buyer any applicable VAT payable in the United Kingdom on the relevant Goods and/or Services subject to receipt of a valid VAT invoice from the Seller.

7.4. The Seller shall provide all such evidence as the Buyer may reasonably request in order to verify invoices submitted by the Seller. In addition, the Seller shall, on request allow the Buyer to inspect and take copies of (or extracts from) all relevant records and materials of the Seller relating to the supply of the Goods as may be reasonably required in order to verify such matters.

7.5. In respect of Goods, the Seller shall invoice the Buyer at any time after Delivery of all Goods has been completed, unless the Order specifies that Goods may be delivered and invoiced in instalments, in accordance with Condition 8.6.  In respect of Services, the Seller shall invoice the Buyer upon completion of all Services referenced in the Order, unless an alternative invoicing schedule is set out in the Order. Each invoice shall quote the relevant order number.

7.6. Unless otherwise agreed by the Buyer, the Buyer shall pay all undisputed Charges for the Goods and the Services, by the last day of the month following the month in which the  relevant invoice has been delivered in accordance with Condition 7.5 or, if later, after acceptance of the Goods or Services in question.

7.7. Time of payment shall not be of the essence.

7.8. The Buyer may without limiting its other rights or remedies set off against any amount it owes to the Seller any sums owed to the Buyer by the Seller.

7.9. If the Buyer fails to make any undisputed payment due to the Seller under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.  This Condition shall not apply to payments which the Buyer disputes in good faith.

7.10. If the Buyer disputes any invoice or other statement of monies due, the Buyer shall promptly notify the Seller in writing, The parties shall negotiate to attempt to resolve the dispute promptly. The Seller shall provide all such evidence as the Buyer may reasonably request to verify the disputed invoice or request for payment. The Seller's obligations to supply the Goods and/or the Services shall not be affected by any payment dispute.

8. DELIVERY

8.1. The Seller shall deliver the Goods to the Delivery Location on the Delivery Date or such other date agreed in writing with the Buyer.

8.2. Delivery shall be deemed to be made on completion of unloading of the Goods at the Buyer's Delivery Location in the Buyer's normal business hours.

8.3. The parties acknowledge and agree that time of delivery of the Goods and of performance of the Services in accordance with the Milestones and any Delivery Date or any other agreed timetable is of the essence. .Notwithstanding this, if for any reason the Buyer requests delivery or performance to be delayed, the Seller shall agree to such request at no extra cost to the Buyer and the provisions of this Condition 8 shall apply to any such revised date for delivery or performance.

8.4. Subject to Condition 21 without prejudice to any other right or remedy it may have the Buyer may claim damages for any costs, expenses or losses resulting from the Seller's failure to deliver the Goods on the Delivery Date or perform the Services in accordance with the Milestones provided that the Seller shall have no liability for any failure or delay directly and solely caused by the Buyer's failure to comply with its obligations under these Conditions.

8.5. A delivery note quoting the Buyer's order number, the type and quantity of Goods included in the delivery and in the case of an Order being delivered in instalments, the outstanding balance of Goods remaining to be delivered must accompany each delivery.

8.6. Delivery or performance by instalments is not accepted by the Buyer unless previously agreed in writing. If Goods are to be delivered or Services are to be performed by instalments, the Contract will be treated as a single contract and not severable but the Goods may be invoiced and paid for separately.

8.7. If the Buyer fails to accept delivery of the Goods on the specified Delivery Date then, except where such failure or delay is caused by the Seller's failure to comply with its obligations under the Contract the Seller shall store the Goods until actual delivery takes place and may charge the Buyer for the reasonable costs and expenses of such storage.

8.8. If the Seller requires the Buyer to return any packaging materials to the Seller, the fact must be clearly stated on the delivery note accompanying the relevant delivery and any such returns shall be at the Seller's expense.

9. ACCEPTANCE

The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted them until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect has become apparent.

10. RISK AND PROPERTY

10.1. Risk of damage to or loss of the Goods shall pass to the Buyer on Delivery. Unless stated otherwise in the Contract, transit and offloading of the Goods shall be at the Seller's risk.

10.2. Title in the Goods shall pass to the Buyer on Delivery, or if earlier, when payment for the Goods is made.

11. COMPLIANCE

The Seller shall comply with all Applicable Laws, regulatory requirements and safety standards concerning the manufacture, packaging, labelling, packing, storage, handling, sale and delivery of the Goods and the performance of the Services.

12. WARRANTIES

12.1. The Seller warrants to the Buyer that the Seller is fully qualified, financed and organised to perform the Contract and that the Goods shall:

    12.1.1. be of satisfactory quality meeting the standard a reasonable person would regard  as satisfactory, taking into account any description of the Goods, the price and other relevant circumstances ;

    12.1.2. fit for any purpose held out by the Seller or made known to the Seller by the Buyer;

    12.1.3. be free from defects in design, material and workmanship for a period of [12 months] from the Delivery Date; and

    12.1.4. correspond with their description and any applicable Goods Specification or any sample provided by the Buyer to the Seller;

12.2. The Seller warrants to the Buyer that the Services:

    12.2.1. will be performed by appropriately trained and qualified personnel, with due care and diligence; and

    12.2.2. in accordance with Good Industry Practice and any specifications or standards set out or referenced in the Order.

13. CERTAIN RIGHTS AND REMEDIES ON DEFAULT

13.1. Each of the Buyer's rights or remedies is without prejudice to any other right or remedy.

13.2. If Goods are not delivered or Services are not performed on or by the due date then the Buyer shall be entitled to:

    13.2.1. deduct from the Charges or (if the Buyer has paid the Charges) to claim from the Seller by way of liquidated damages for delay 1% of the Charges for every week’s delay up to a maximum of 10%; and

    13.2.2. cancel the Order (or any part) without liability and purchase substitute items or services elsewhere and recover from the Seller any loss or additional costs incurred.

13.3. The parties confirm that the liquidated damages set out in Condition 13.2 above are reasonable and proportionate to protect the Buyer's legitimate interest in performance.

13.4. If any Goods do not comply with Condition 12.1 or are not otherwise supplied or performed in accordance with the Contract, then without limiting any other right or remedy that the Buyer may have the Buyer shall be entitled at its discretion:

    13.4.1. to reject the Goods and require the Seller at the Seller's risk and expense to repair the Goods or to supply replacement Goods in accordance with the Contract within seven days;

    13.4.2. to return the Goods to the Seller at the Seller's risk and expense on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;

    13.4.3. to repair or replace the Goods and charge the Seller with the cost of this rectification or replacement; or

    13.4.4. whether or not the Buyer has previously required the Seller to repair the Goods or to supply replacement Goods or Services, to treat the Contract as discharged by the Seller's breach and require the repayment of any part of the Charges already paid.

13.5. If any Services do not comply with Condition 12.2 or are not otherwise supplied or performed in accordance with the Contract, then without limiting any other right or remedy that the Buyer may have the Buyer shall be entitled at its discretion:

    13.5.1. to require the Seller at the Seller's risk and expense to supply replacement Services in accordance with the Contract within seven days; or

    13.5.2. whether or not the Buyer has previously required the Seller to supply replacement Services, to treat the Contract as discharged by the Seller's breach and require the repayment of any part of the Charges already paid.

13.6. In each of the cases set out in Conditions 13.4.1 to 13.4.4 and in Condition 13.5, the Buyer may claim damages for any costs, expenses or losses resulting from the Seller's delivery of the Goods or Services that are not in conformity with the terms of the Contract.

13.7. Goods returned to the Seller for rectification shall be forwarded at the Seller's risk and expense.

13.8. The terms of the Contract shall apply to any repaired or replacement Goods or Services supplied by the Seller.

14. DATA PROTECTION

14.1. Each party shall:

    14.1.1. process the Personal Data in accordance with its obligations under Data Protection Law;

    14.1.2. provide the other (the Requesting Party) with such reasonable assistance as is requested by the Requesting Party to enable the Requesting Party to comply with its obligations under Data Protection Law; and

    14.1.3. implement and maintain all adequate and appropriate technical and organisational measures and controls to prevent unauthorised or unlawful processing of Personal Data and accidental loss, destruction, damage, theft, use or disclosure of such Personal Data and shall protect against any anticipated threats or hazards to the security or integrity of the Personal Data, and detect and prevent unauthorised processing of, or unauthorised access to the Personal Data.

14.2. In addition to Condition 14.1 and to the extent that the Seller processes any Personal Data on behalf of the Buyer, for the purposes of Data Protection Law, the Seller is the processor and the Buyer is the controller and the provisions of the Data Processing Addendum shall apply.

15. INTELLECTUAL PROPERTY RIGHTS

15.1. Subject to Conditions 3.3 and 15.2, all Intellectual Property Rights in or arising out of or in connection with the Goods, Deliverables and the Services shall be owned by the Seller.

15.2. All Developed IPR shall be owned by the Buyer.  All Intellectual Property Rights in any bespoke Goods or Deliverables developed by the Seller specifically for the Buyer under the Contract other than the Developed IPR shall be owned by the Seller.

15.3. The Seller hereby grants or procures the grant to the Buyer of an unrestricted, non-exclusive, transferable, royalty-free, perpetual, irrevocable and worldwide licence (including the right to grant sub-licences) to any and all Intellectual Property Rights required for any reasonably foreseeable use and/or operation of the Goods or Deliverables by any person and/or the enjoyment of the Services by any person.

15.4. The Seller shall and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these Conditions.

16. INDEMNITY

16.1. The Seller shall indemnify the Buyer against all liabilities, losses (whether direct or indirect or consequential and including loss of profits, loss of reputation, interest, penalties and expenses (including legal expenses)), costs and damages awarded against or incurred by the Buyer as a result of or in connection with:

    16.1.1. breach of any warranty relating to the Goods or the Services;

    16.1.2. any claim that the Goods or use of the supply of the products of the Services infringe the Intellectual Property Rights of any person;

    16.1.3 . any claim made against the Buyer in respect of any breach or alleged breach by the Buyer of any Applicable Laws arising from the Seller's acts or omissions or those of the Seller's employees, agents or subcontractors;

    16.1.4. any act or omission of the Seller or the Seller's employees, agents or sub-contractors in supplying, delivering and installing the Goods and in performing the Services, including any death, personal injury or loss or damage to persons or property caused or contributed to by the negligence of the Seller, the Seller's employees, agents or subcontractors or by faulty design, workmanship or materials; and

    16.1.5. any claim made against the Buyer arising out of or in connection with the supply of the Goods to the extent such claim arises out of the breach, or failure or delay in performance of the Contract by the Seller, its employees, agents or subcontractors.

17. ANTI-BRIBERY, ANTI-CORRUPTION and modern slavery

17.1. In performing it obligations under the Contract the Seller shall comply with and not do anything to place the Buyer in breach of all applicable laws, regulations, codes and sanctions relating to bribery and corruption and anti-slavery and human trafficking.

17.2. The Seller represents and warrants that it has not Bribed in connection with obtaining the Contract.

17.3. The Seller warrants and undertakes that it shall not Bribe in connection with the Contract or its performance.

17.4. The Seller shall adopt, implement, maintain, enforce and update (as necessary) adequate policies designed to prevent Bribery from occurring.  The Seller shall provide adequate and regular training to its employees, agents, directors and officers (Personnel) in order to ensure an understanding of the Seller's policy and procedures and their obligations arising from it on a continuing basis.

17.5. The Seller shall certify to the Buyer on an annual basis the Seller's compliance with Conditions, 17.2, 17.3  and 17.4.

17.6. The Seller shall notify the Buyer immediately in writing upon becoming aware of, or suspecting, any failure to comply with any provisions of this Condition 17.

17.7. If any of the Seller's Personnel Bribe in connection with the Contract, without prejudice to the Buyer's other rights or remedies under the Contract or under law, the Seller shall promptly upon request by the Buyer remove or procure the removal of the relevant person who has Bribed from all involvement in connection with the performance of the Contract and take such other action as the Buyer reasonably requires for the purpose of remedying or preventing the future occurrence of such activity.

17.8. Breach of this Condition 17 shall be deemed a material breach under Condition 19.2.1.

18. SPARE PARTS

The Seller shall ensure that all spare and/or replacement parts, components and materials for the Goods shall be available from the Seller for 10 years from date of first use by the Buyer of the Goods in question, unless the Seller provides the Buyer with all drawings, plans, specifications and other technical data as the Buyer reasonably believe are necessary to enable the Buyer to manufacture such parts or the Goods.

19. TERMINATION

19.1. The Buyer shall be entitled to cancel Orders in respect of all or part only of the Goods and/or the Services by giving notice at any time prior to delivery or performance without incurring any liability to the Seller other than to pay for Goods and/or Services already delivered or performed at the time of such notice.

19.2. The Buyer shall be entitled to immediately terminate the Contract without liability to the Seller and reserving all rights by giving notice to the Seller at any time if:

    19.2.1. the Seller is in material breach of any of its obligations and that breach cannot be remedied;

    19.2.2. the Seller is in material breach of any of its obligations and that breach can be remedied but the Seller fails to do so within 30 days starting on the day after receipt of notice from the Buyer;

    19.2.3. the Seller commits more than one breach of any of its obligations and the cumulative effect of such breaches is that the Buyer reasonably believes that the Seller will continue to deliver a substandard performance over the one month period immediately after receipt of notice from the Buyer;

    19.2.4. an Insolvency Event occurs; or

    19.2.5. the Buyer reasonably believes that any of the events mentioned above is about to occur and the Buyer notifies the Seller accordingly.

19.3. If Delivery is incomplete on the date of termination of the Contract then the Buyer may accept or reject the Goods or Services delivered or performed and cancel or vary the balance of the Order.

19.4. Termination of the Contract shall not affect the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

19.5. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

20. CONFIDENTIALITY

20.1. Each party undertakes to the other in relation to the Confidential Information of the other:

    20.1.1. to keep confidential all Confidential Information;

    20.1.2. not to disclose Confidential Information without the other’s prior written consent to any other person except those of its employees who have a need to know the Confidential Information;

    20.1.3. not to use Confidential Information except for the purposes of performing its obligations under the Contract (and in particular not use Confidential Information to obtain a commercial, trading or any other advantage); and

    20.1.4. to keep separate from all other information all Confidential Information in its possession or control.

20.2. The provisions of Condition 20.1 shall not apply to Confidential Information to the extent that it is or was:

    20.2.1. already in the possession of the other free of any obligation of confidentiality on the date of its disclosure;

    20.2.2. in the public domain other than as a result of a breach of this Condition 20;

    20.2.3. required to be disclosed:

        (a) pursuant to Applicable Law, or the rules of any exchange on which the securities of a party are or are to be listed; or

        (b) in connection with proceedings before a court of competent jurisdiction or under any court order or for the purpose of receiving legal advice, but only to the extent and for the purpose of that disclosure.

20.3. Each party acknowledges that Confidential Information is valuable and that damages might not be an adequate remedy for any breach of Condition 20 and accordingly a party will be entitled, without proof of special damage, to an injunction and other equitable relief for any actual or threatened breach of Condition 20.

20.4. On termination of the Contract for any reason each party shall cease to use the other party's Confidential Information.

21. LIMITATION ON LIABILITY

21.1. Nothing in the Contract shall operate so as to exclude or limit liability of either party to the other

    21.1.1. for death or personal injury caused as a result of its negligence;

    21.1.2. arising out of fraud or fraudulent misrepresentation;

    21.1.3. for any liability that cannot be excluded or limited by law.

21.2. Subject to Condition 21.1 and (in the case of the Seller) Condition 21.4, neither party shall be liable to the other under the Contract in contract, tort (including negligence and breach of statutory duty) or otherwise for any indirect, special or consequential loss, including indirect loss of profits or business opportunity (whether or not reasonably foreseeable and even if it had been advised of the other incurring the same).

21.3. Subject to Conditions 21.1 and 21.2 the total aggregate liability of the Buyer to the Seller under or in relation to the Contract including liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including but not limited to negligence) and breach of statutory duty shall not exceed 100% of the Charges paid or payable under the Contract.

21.4. The limitations set out in Condition 21.2 shall not apply in respect of the Seller's liability under or in relation to Conditions 14 (Data Protection), 16 (Indemnity) or 20 (Confidentiality).

22. FORCE MAJEURE

22.1. No party shall be liable for any failure to perform or delay in performance of any of its obligations under the Contract caused by a Force Majeure Event provided always that such party could not have avoided the effect of the Force Majeure Event by taking precautions including contingency planning, which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken and did not. 

22.2. The party claiming the Force Majeure Event shall promptly notify the other party in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to bring that event to a close or to find a solution by which its obligations under the Contract may be performed despite the Force Majeure Event. 

22.3. If the party claiming the Force Majeure Event has complied with Condition 22.2, its performance under the Contract shall be suspended for the period that the Force Majeure Event continues and the party will have a reasonable extension of time for performance of its obligations taking all circumstances into account.  As regards the delay or stoppage arising from the Force Majeure Event any costs arising from such delay or stoppage shall be borne by the party incurring those costs.

22.4. If the Force Majeure Event continues for at least 14 days, the non-affected party may terminate the Contract on written notice. 

23. GENERAL

23.1. Any notice to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid recorded delivery or by email. Delivery by courier shall be regarded as delivery by hand.  Notices shall be sent to the registered office or principal place of business of the Seller or the Buyer (as applicable).

23.2. Notices shall be deemed to have been received if :(i) delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (ii)  sent by pre-paid recorded delivery 48 hours from the date of posting; or (iii) delivered by email, at the time of sending, provided that no automated notification informing the sender that the message has not been delivered has been received by the sender; provided that if deemed receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice is deemed to have been received at 9am on the next Business Day.

23.3. Orders are personal to the Seller and the Seller shall not transfer, assign, charge, dispose of or deal in any manner or purport to do the same with any of the Seller's rights or beneficial interests.

23.4. The Seller shall not sub-contract or deal in any other manner with all or any of the Seller's rights or obligations under the Contract, without the Buyer's prior written consent.

23.5. The Buyer may at any time assign, transfer or subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

23.6. Any waiver by the Buyer of any breach is not a waiver of any subsequent breach.

23.7. Failure or delay by the Buyer in enforcing or partially enforcing any provision of the Contract is not a waiver of any of the Buyer's rights.

23.8. If any provision of these Conditions is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of these Conditions which shall continue in full force and effect.

23.9. The Seller shall at all times maintain adequate insurance cover with a reputable insurer against the Seller's liability under the Contract and produce the policy and latest premium receipt to the Buyer on demand.

23.10. The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of the Contracts (Rights of Third Parties) Act 1999.

23.11. Nothing in the Contract is intended to or shall be deemed to create or imply the existence of a partnership or joint venture between the parties nor any arrangement which would impose liability on the Buyer for the acts or omissions of the Seller and vice versa. In particular, each party acknowledges that it shall not, at any time without the other party's prior written consent make or enter into any commitments on behalf of the other party.

23.12. The rights and remedies provided under the Contract are in addition to, and not exclusive of, any legal rights or remedies.

24. GOVERNING LAW AND JURISDICTION

24.1. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) is governed by and construed in accordance with the law of England and Wales.

24.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).  

 

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