Terms and Conditions for the Supply of Goods and Services

ENERCON INDUSTRIES LTD

TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES

The Customer’s attention is particularly drawn to the provisions of clause 12

INTERPRETATION
1. Definitions. In these Conditions, the following definitions apply:
  Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
  Commencement Date: has the meaning set out in clause 2.2.
  Conditions: these terms and conditions as amended from time to time in accordance with clause 16.9.
  Contract: the agreement, as set out in clause 2.2, between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
  Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
  Deliverables: the deliverables set out in the Order.
  Delivery Location: means the location specified in the Customer’s written order.
  Force Majeure Event: has the meaning given to it in clause 16.1(a).
  Goods: the goods (or any part of them) set out in the Order.
  Goods Specification: any specification for the Goods, including any relevant plans or drawings, that are agreed in writing by the Customer and the Supplier.
  Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
  Order: the Customer’s order for the supply of Goods and/or Services or the Customer’s verbal or written acceptance of the Supplier’s quotation.
  Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
  Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
  Supplier: Enercon Industries Ltd registered in England and Wales with company number 2733053.
  Supplier Materials: has the meaning set out in clause 8.1(g).
2. Construction. In these Conditions, the following rules apply:
  1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  2. a reference to a party includes its [personal representatives,] successors or permitted assigns;
  3. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
  4. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
  5. a reference to writing or written includes faxes and e-mails.
BASIS OF CONTRACT
1. The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate. The Customer is responsible for giving the Supplier any necessary information relating to the Goods within a sufficient time to enable the Supplier to perform the Contract.
2. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
4. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
5. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
6. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 45 Business Days from its date of issue.
7. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
8. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other documentation or information issued by the Supplier will be subject to correction without any liability on the part of the Supplier.
9. No Order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of labour and materials used), damages, charges and expenses arising from the cancellation.
GOODS
1. The Goods are described in the Supplier’s sales literature.
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 and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3. The Supplier reserves the right to amend the specification of the Goods and Services if required by any applicable statutory or regulatory requirements.
DELIVERY OF GOODS
1. The Customer shall collect the Goods from the Supplier’s premises at any time after the Supplier has notified the Customer that the Goods are ready for collection, within five Business Days of the Supplier notifying the Customer that the Goods are ready. Alternatively, if it has been agreed by the Supplier then it shall deliver the Goods within seven days at the Delivery Location.
2. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence unless previously agreed in writing by the Supplier. 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 the failure by the Customer to make ready any premises where Goods are to be installed or located or any other instructions that are relevant to the supply of the Goods. The Supplier may deliver the Goods in advance of the quoted delivery date on giving reasonable prior notice to the Customer.
3. 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. 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, the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods, or any relevant instruction related to the supply of the Goods.
4. If the Customer fails to accept or take delivery of the Goods within 10 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) the Supplier may:
  1. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price of the Contract; or
  2. store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance and transit).
5. The Supplier reserves the right to withhold delivery of the Goods in the event that the Customer’s preferred Location for delivery is, in the Supplier’s or the Suppliers delivery agents’ reasonable opinion, unsafe to proceed with instalment or delivery of the Goods. In the event that the premises or location is deemed unsafe upon or prior to delivery, the Supplier may resell the Goods at the best price readily obtainable and the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the costs of labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
6. The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
QUALITY OF GOODS
1. The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
  1. conform in all material respects with their description and any applicable Goods Specification;
  2. be free from material defects in design, material and workmanship; and
  3. be fit for any purpose held out by the Supplier.
2. Subject to clause 5.3, if:
  1. the Customer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
  2. the Supplier is given a reasonable opportunity of examining such Goods; and
  3. the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
3. The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
  1. the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
  2. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
  3. the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
  4. the Customer alters or repairs such Goods without the written consent of the Supplier;
  5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
  6. the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards;
  7. the total price for the Goods has not been paid by the due date for payment; or
  8. the Goods are not used in accordance with any instruction or recommendations by the Supplier, and in particular the Supplier shall have no liability if the goods are not kept and used in a safe environment or if the Goods are used in conjunction with or where there are flammable or combustible materials.
4. The warranty in clause 5.1 does not extend to parts, materials or equipment not manufactured by the Supplier, in respect of which the Customer shall only be entitled to the benefit of any such warranty as is given by the manufacturer to the Supplier. The Goods shall be deemed to be accepted unless a written claim is received
  1. by both the Supplier and the carrier within 5 days of delivery in respect of damage, delay or partial loss in transit;
  2. by both the Supplier and the carrier within 28 days of despatch in respect of non-delivery; or
  3. by the Supplier within 28 days of delivery in respect of any other matter.
5. The Customer shall retain the Goods and enable reasonable access to those Goods for inspection by the Supplier, or at the Supplier’s request the materials or parts alleged to be defective must be returned to the Supplier.
6. If delivery is not refused, and the Customer does not notify the Supplier accordingly, the Customer shall not be entitled to reject the Goods and the Supplier shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
7. In the event that a valid claim in respect of any of the Goods is notified to the Supplier in accordance with these Conditions the Supplier may, at its sole discretion:
  1. either at the Supplier’s expense and within a reasonable time rectify the defect; or
  2. replace the Goods; or
  3. refund to the Customer the price of the Goods (or a proportionate part of the price), in which case the Supplier shall have no further liability.
8. The Supplier will not consider any claim for compensation, indemnity or refund until liability (if any) has been established or agreed with the Supplier and, where applicable, any relevant insurer. Under no circumstances, shall the invoiced costs of the Goods be deducted or set off by the Customer until the Supplier has passed a corresponding credit note.
9. Any Goods or component parts of the Goods replaced by the Supplier pursuant to clause 5.7 above (Replaced Goods) shall, upon replacement, become the property of the Customer, and the Supplier warrants that its title to such Replaced Goods shall be free and unencumbered or that it shall have all the necessary consents and authorities to part with possession of the replaced goods.
10. The terms implied by sections 13 to 15 of the Sales of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
11. The terms of these Conditions shall apply to any repaired or Replaced Goods supplied by the Supplier under clause 5.2.
TITLE AND RISK
1. The risk in the Goods shall pass to the Customer:
  1. in the case of Goods to be delivered at the Supplier’s premises, at the time when the Supplier notifies the Customer that the Goods are available for collection; or
  2. in the case of Goods delivered to the Delivery Location,, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods.
2. Thereafter the Customer shall be responsible for the satisfactory care and protection of the Goods and shall take out at its own expense adequate and comprehensive all-risk cover on the Goods for their full replacement value (with a note of the Supplier’s interest as loss payee endorsed thereon) until the Supplier has received payment of the price in full, including all value added tax.
3. Beneficial or legal title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
  1. the Goods; and
  2. any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.
4. Until title to the Goods has passed to the Customer, the Customer shall:
  1. hold the Goods on a fiduciary basis as the Supplier’s bailee;
  2. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property and shall, upon request, promptly inform the Supplier of their location;
  3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  4. 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;
  5. notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.1(b) to 13.1(l);
  6. give the Supplier such information relating to the Goods as the Supplier may require from time to time; and
  7. if required by the Supplier, allow the Supplier to conduct in the Customer’s name legal proceedings in respect of the monies due on sale of the Goods. Any sums recovered by the Supplier as a result of such proceedings (including the sums accepted by the Supplier in settlement therefore whether or not any sums claimed) shall be applied to the reimbursement of the monies due to the Supplier from the Customer and then to the reasonable cost incurred by the Supplier in the course of such proceedings. Such monies shall not be mixed with other money or paid in to the Supplier’s money. Any balance remaining shall be paid to the Customer. The Supplier may at any time revoke the Customer’s power of sale and use. The Customer’s power of sale shall automatically cease if any of the events in clause 8.2 shall occur, when the Customer shall forthwith and without need for notice cease to use or otherwise dispose of the goods not then used, disposed or sold.
5. If, before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 13.1(b) to 13.1(l), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods 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.
6. Nothing in this Clause shall give the Customer the right to return the Goods without the Supplier’s prior consent.
7. The Customer shall not pledge or in any way charge by way of security for indebtedness any of the Goods which remain the property of the Supplier.
SUPPLY OF SERVICES
1. In the event that the Customer requests the supply of Services, the Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
2. The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
CUSTOMER’S OBLIGATIONS
1. The Customer shall:
  1. ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
  2. co-operate with the Supplier in all matters relating to the Services;
  3. provide the Supplier, its employees, agents, consultants and subcontractors with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
  4. prepare the Customer’s premises for the supply of the Services and ensure that the location or premises where the Services are to be carried out are, in the reasonable opinion of the Supplier and the Service providers, safe. In the event that the premises or location is deemed unsafe, upon provision of the Services, the Supplier may suspend performance of the Services and will not be held liable for any losses as a result of failure to provide the Services and the Customer will indemnify the Supplier for any costs incurred as a result of the cancellation;
  5. provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
  6. obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
  7. keep and maintain 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.
2. If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
  1. the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
  2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
  3. the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
CHARGES AND PAYMENT
1. The price for Goods shall be the Supplier’s quoted price or, if no price is quoted, the price set out in the Supplier’s price list as at the date of delivery. The price of the Goods is quoted on an ex works basis and subject to clause 9.2 below, is valid for 45 days only or until earlier acceptance by the Customer, which after that time they may be altered by the Supplier only with notice to the Customer.
2. If the Supplier has not agreed a price for the Services, then the charges for Services shall be on a time and materials basis:
  1. the charges shall be calculated in accordance with the Supplier’s standard daily fee rates, as set out in the Service Policy Rate Schedule (Document AS146E);
  2. the Supplier’s standard daily fee rates for each individual person are calculated on the basis of a ten-hour day from 8.00 am to 6.00 pm worked on Business Days;
  3. the Supplier shall be entitled to charge an overtime rate of 50% per cent of the standard daily fee rate on a pro-rata basis for each part-day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2(b); and
  4. the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
3. The Supplier reserves the right to:
  1. increase its standard daily fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any twelve month period. The Supplier will give the Customer written notice of any such increase one month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within two weeks of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving two weeks’ written notice to the Customer; and
  2. (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:
    1. 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);
    2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
    3. 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.
4. In respect of both Goods and Services, the Supplier shall invoice the Customer on or at any time after completion of delivery.
5. The Customer shall pay each invoice submitted by the Supplier:
  1. within 30 days of the date of the invoice; and
  2. in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
6. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
7. Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 6% per annum above the then-current National Westminster Bank’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
8. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
INTELLECTUAL PROPERTY RIGHTS
1. All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
2. The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
3. All Supplier Materials are the exclusive property of the Supplier.
CONFIDENTIALITY
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 11 shall survive termination of the Contract.
LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
1. The Customer shall carefully examine the Goods as soon as reasonably practicable after delivery and shall notify the Supplier in writing of any non-delivery, short delivery, damaged Goods, in transit or any defect reasonably discoverable on careful examination. This notification must be received by the Supplier within 5 days’ commencing with the date of delivery to the Customer. If no such notice is received by the Supplier, it shall be discharged from all liability in respect of such defect.
2. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
  1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  2. fraud or fraudulent misrepresentation;
  3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
  4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
  5. defective products under the Consumer Protection Act 1987.
3. Subject to clause 12.1 and 12.2 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract. Non-exhaustive illustrations of direct loss would be loss of profit, loss of contract, loss of goodwill, damage to the Customer’s property or the property of any third party or personal injury to any third party other than caused by the Supplier’s negligence.
4. The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid for the Goods or Services covered by the Contract. The following are therefore excluded:
  1. all other conditions, warranties, terms whether expressed or implied by statute or common law and whether or not involving negligence on the part of the Supplier, its servants or agents;
  2. any duty of care;
  3. the Customer accepts that it is its responsibility to insure against these risks.
5. These Conditions are in lieu of all conditions, warranties, or other terms as to description, fitness for purpose, condition merchantability, satisfactory quality, quantity or otherwise in respect of the Goods or packaging, whether expressed in the Contract or implied by Common Law custom or statute and notwithstanding that such purpose or condition may be, may become or may have been known to the Supplier. This clause 12 applies to the extent permitted by statute.
6. This clause 12 shall survive termination of the Contract.
TERMINATION
1. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
  1. the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 10 working days after receipt of notice in writing of the breach;
  2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or [(being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply];
  3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party];
  4. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
  5. the other party (being an individual) is the subject of a bankruptcy petition or order;
  6. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
  7. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
  8. a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
  9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
  10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1(b) to clause 13.1(i) (inclusive);
  11. the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
  12. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
2. Without limiting its other rights or remedies, the Supplier may terminate the Contract:
  1. by giving the Customer 3 months’ written notice; or
  2. with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
3. The Customer may terminate the Contract by giving the Supplier not less than 3 months’ written notice.]
4. Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
  1. the Customer fails to make pay any amount due under this Contract on the due date for payment; or
  2. the Customer becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
CONSEQUENCES OF TERMINATIONOn termination of the Contract for any reason:
1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
2. the Customer shall return all of the Supplier Materials and any Deliverables 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 safekeeping and will not use them for any purpose not connected with this Contract;
3. the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
4. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
INDEMNITY
The Customer will indemnify the Supplier in full on demand from and against all losses, costs, claims, damages, expenses and liabilities awarded against or incurred by the Supplier in connection with or agreed to be paid by the Supplier in settlement of any claim:
1. arising from any failure by the Customer to comply with any instructions, procedures, precautions, guidelines or other measure specified verbally or in writing by the Supplier relating to the use of the goods by it or from the Customer’s failure to use best endeavours to procure that any person who subsequently uses the Goods is made aware of the same and of the importance of complying with them;
2. arising because of any breach by the Customer of any of its obligations under the Contract.
GENERAL
1. Force majeure:
  1. for the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors;
  2. the Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event;
  3. if the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than four weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
2. Assignment and subcontracting:
  1. the Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party;
  2. the Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
3. Notices
  1. any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number;
  2. any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission;
  3. this clause 16.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
4. Confidentiality
  1. the Customer shall not, at any time, during this agreement and for a period of five years after termination, disclose to any person any confidential information disclosed to it by the Supplier concerning the intellectual property, business and affairs of the Supplier;
  2. the Customer may disclose the other Suppliers, Confidential Information; (i) to its employees, officers agents, consultants or sub-contractors (Representatives) who need to know such information for the purposes of carrying out the obligations under this agreement, provided that the Customer takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 16.4 as though they were a party to this agreement. The Customer shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and (ii) as may be required by law, court order or any governmental or regulatory authority;
  3. the Supplier reserves all the rights in its Confidential Information. No rights or obligations in respect of the Supplier’s Confidential Information other than those expressly stated in this agreement are granted to the Customer or to be implied from this agreement. In particular, no license is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made obtained or licensable by either party now or in the future.
5. Waiver and cumulative remedies:
  1. a waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy;
  2. unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
6. Severance:
  1. if a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected;
  2. if any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
7. No partnership: nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
8. Third parties: a person who is not a party to the Contract shall not have any rights under or in connection with it.
9. Variation: except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.
10. Governing law and jurisdiction: this Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

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