Delivery and Returns

7.3 The Company’s liability for a breach of the Warranty or these Conditions (including any statutory warranty or condition which is not excluded by these Conditions) is conditional upon:
(a) the Buyer giving written notice of the potential defect to the Company (and, if the defect is as a result of damage in transit, to the carrier) and providing sufficient detail for the Company to identify the nature and extent of the potential defect immediately upon becoming aware of it during the Warranty Period;
(b) the Company being given a reasonable opportunity after receiving notice of any potential defect to examine such Goods and the Buyer (if asked to do so by the Company) returning such Goods to the Company’s place of business at the Buyer’s cost for the examination to take place there;
(c) there having been no unauthorised alteration or addition to the Goods; and
(d) the Buyer not making any further use of the Goods after giving notice of the potential defect. 7.4 The Company shall not be liable for a breach of the Warranty or these Conditions (including any statutory warranty or condition which is not excluded by these Conditions) if:
(a) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, use or maintenance of the Goods or (if there are none) good trade practice (including the Goods having been used in excess of their rated capacity, or under conditions detrimental to the successful operation or likely to cause excessive wear and tear);
(b) the defect arises as a result of fair wear and tear, wilful damage or negligence of the Buyer or any other person other than the Company;
(c) the defect arises as a result of the Company following any Specification supplied by the Buyer; (d) the Buyer alters or repairs such Goods without the prior written consent of the Company; or
(e) the Goods differ from their description or the Specification as a result of changes made to ensure compliance with applicable statutory or regulatory requirements.
7.5 Subject to conditions 7.3 or 7.4, if any of the Goods do not conform with the Warranty the Company shall at its option repair or replace such Goods (or the defective part(s)) or refund the Price pro rata for the defective Goods. The Company shall have no further liability for a breach of the Warranty in respect of such Goods.
7.6 Any Goods replaced will under condition 7.5 will be covered under the Warranty for the unexpired portion of the Warranty Period.

8. SUPPLY OF SERVICES

8.1 The Company shall supply the Services to the Buyer in accordance with any applicable Specification in all material respects.
8.2 The Company warrants to the Buyer that the Services will be provided using reasonable skill and care by a person who, in the Company’s opinion, has the necessary qualifications or experience to carry out the Services.
8.3 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order or otherwise agreed between the Company and the Buyer in writing, but any such dates shall be estimates only and shall not be of the essence of the Contract. 8.4 The Company reserves the right to amend any Specification if necessary to comply with applicable law or regulatory requirements, and if the amendment will materially affect the nature or quality of the Services, the Company shall notify the Buyer as soon as possible.
8.5 If the Company is providing personnel to the Buyer to provide the Services, the Company reserves the right to substitute such personnel (provided such person has, in the Company’s opinion, the necessary qualifications or experience to provide the Services). Nothing in these Conditions shall create a contract between the Buyer and personnel supplied by the Company. 8.6 If the Company is providing assembly or installation services to the Buyer, “certificates of test” will be given. Details of, or certificates obtained during, testing carried out before and/or during manufacture will not be supplied to the Buyer unless specifically stated otherwise by the Company in writing. The giving of any “certificate of test” shall in no way affect the Company’s liability for defects as set out in these Conditions. The Buyer can by arrangement inspect and test the Goods prior to delivery but failing such inspection before delivery the Buyer shall be deemed to accept the Goods as complying with the Contract.
8.7 The Buyer shall:
(a) co-operate with the Company in all matters relating to the Services;
(b) at its own cost, provide the Company, its employees, agents, consultants and subcontractors with such access, facilities, information and materials as the Company may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(c) at its own cost, comply with all applicable laws, including health and safety laws;
(d) keep all materials, equipment and other property belonging to the Company at the Buyer’s premises, or other location where the Services are to be provided by the Company, in safe custody at its own risk, and maintain any such items in good condition and not dispose of or use any such items other than in accordance with the Company’s prior written instructions or authorisation; and
(e) at its own cost, unless otherwise agreed by the Company in writing, comply with any additional obligations set out in the Specification.

9. CANCELLATION

9.1 An Order (or part of an Order) may only be cancelled with the Company’s written agreement. 9.2 Notwithstanding condition 9.1, an Order for Goods which have been made in accordance with a Specification or otherwise modified at the Buyer’s request may not be cancelled.
9.3 Unless otherwise agreed by the Company, upon cancellation of an Order:
(a) the Company shall invoice the Buyer for any costs or charges incurred (to the extent such costs and charges have not already been paid for by the Buyer), and time spent, by the Company fulfilling an Order or carrying out any other obligations under the Contract, together with a re- stocking fee equal to 25% of the Price payable in respect of Goods only; and
(b) notwithstanding condition 4 of these Conditions, any invoice issued by the Company to the Buyer shall become immediately due and payable.

10. LIMITATION OF LIABILITY

10.1 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of the Contract;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission, including negligence, arising under or in connection with the Contract.
10.2 Except as provided in condition 10.5, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Subject to condition 10.4, the Company’s total liability to the Buyer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with the Contract shall be limited to the Price.
10.4 The Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill, loss of or damage to equipment or property, or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10.5 Nothing in these Conditions excludes or limits the liability of the Company for:
(a) death or personal injury caused by the Company’s negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sales of Goods Act 1979;
(d) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982; or
(e) any other matter in respect of which it would be illegal for the Company to exclude, restrict, or attempt to exclude or restrict, its liability.
10.6 This condition 10 shall survive termination or expiry of the Contract.

11. TERMINATION

11.1 The Company may terminate the Contract at any time upon giving not less than one month’s notice in writing to the Buyer.
11.2 Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving notice in writing to the Buyer if:
(a) the Buyer commits a material breach of any of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within ten Business Days after receipt of notice in writing to do so;

(b) the Buyer 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;
(c) the Buyer 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;
(d) (being an individual) the Buyer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Buyer 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 fourteen days;
(f) (being a company) 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 Buyer;
(g) (being a company) a floating charge holder over the assets of the Buyer has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Buyer or a receiver is appointed over the assets of the Buyer;
(i) any event occurs, or proceedings are taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 11.2(b) to condition 11.2(h) (inclusive);
(j) the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
11.3 Upon termination, all outstanding sums payable by the Buyer to the Company under the Contract or any other contract between the Buyer and the Company shall become immediately due, and the Buyer shall return any materials, equipment and property owned by the Company and/or its personnel to the Company immediately, and in any event within five Business Days of termination.

12. RIGHTS INFRINGEMENT

12.1 All and any intellectual property rights in, or arising out of or in connection with, the Goods and/or Services and/or any Deliverables (other than intellectual property rights in any materials provided by the Buyer) shall belong to and vest in the Company.
12.2 The Company grants to the Buyer, free of charge, a non-exclusive, worldwide licence in respect of such rights to the extent necessary to enable the Buyer to make reasonable use of the Goods and/or Services and/or Deliverables.
12.3 The Buyer shall not remove, suppress or modify any trade mark, copyright or other proprietary marking belonging to the Company from the Goods and/or Services and/or any Deliverables, and shall not reverse compile engineer, tamper with, or in any way alter or modify the Goods and/or Services and/or the Deliverables without the prior written consent of the Company.
12.4 The Buyer shall promptly and fully notify the Company of:
(a) any actual, threatened or suspected infringement of any intellectual property rights which comes to the Buyer’s notice; and
(b) any claim by any third party that comes to the Buyer’s notice that the Goods and/or Services and/or Deliverables infringe the rights of any person.
12.5 The Buyer agrees (at the Company’s request and reasonable expense) to do all such acts and things as may reasonably be required to assist the Company in taking or resisting proceedings in relation to any infringement or claim referred to in condition 12.4.
12.6 The Buyer shall indemnify the Company against all damages, penalties, costs and expenses to which the Company may become liable as a result of work done in accordance with the Specification provided by the Buyer which involves the infringement of any third party intellectual property rights (including, but not limited to trademarks, copyright, design rights or patents).
12.7 This condition 12 shall survive termination or expiry of the Contract.

13. CONFIDENTIALITY

13.1 Any information exchanged in the course of the supply of Goods and/or Services under the Contract shall be treated as strictly confidential by the Company and the Buyer, and each party agrees not to use such information for its own purposes (other than implementation of the Contract), nor without the prior written consent of the other party, disclose to any third party (except its employees, officers, representatives or subcontractors who need to know such information for the purposes of carrying out obligations under the Contract, or its professional advisers, or as may be required by any law or any governmental or regulatory authority) any such information, unless such information is public knowledge already at the time of disclosure, or subsequently becomes public knowledge other than by breach of the Contract, or subsequently becomes lawfully into the possession of either the Company or the Buyer from a third party. The Company and the Buyer shall each use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
13.2 This condition 13 shall survive termination or expiry of the Contract.

14. DATA PROTECTION

14.1 The Company and the Buyer acknowledge that for the purposes of the Data Protection Legislation, the Buyer is the Data Controller and the Company is the Data Processor in respect of any Personal Data.
14.2 The Company shall process Personal Data supplied by the Buyer in accordance with the privacy policy on its Website (as amended or replaced from time to time).

15. ASSIGNMENT AND SUB-CONTRACTING

15.1 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.2 The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.

16. EVENTS BEYOND THE COMPANY’S CONTROL

16.1 The Company reserves the right to defer the Delivery Date, the Services Start Date and/or the Completion Date, or terminate the Contract without liability to the Buyer, and it shall not be liable for any failure or delay in performing its obligations under the Contract, if it is prevented from or delayed in carrying out its obligations under the Contract, due to a Force Majeure Event. A Force Majeure Event means any event or circumstance beyond the reasonable control of the Company including, without limitation, act of God, governmental action, war or national emergency, act of terrorism, protest, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-out, strike or other labour dispute (whether or not relating to either party’s workforce), or restraint or delay affecting carriers, or the inability to obtain, or delay in obtaining, supplies of adequate or suitable materials.
19.2 If the Force Majeure Event continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract and condition 11.3 shall apply.

17. SEVERANCE

If any court or 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 be deemed modified to the extent necessary to make it valid, legal and enforceable. If such modification is not possible, that provision or part- provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

18. WAIVER

A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.

19. VARIATION

19.1 Subject to condition 19.2, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the parties.
19.2 The Company may unilaterally amend these Conditions by giving the Buyer not less than one month’s notice.

20. THIRD PARTY RIGHTS

This Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Contract.

21. NOTICES

21.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other postal or email address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, or email.
21.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in condition 21.1; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if sent by email, one Business Day after transmission (provided a delivery or read receipt is received by the sender).
21.3 The provisions of this condition shall not apply to the service of any proceedings or other documents in any legal action.

22. LAW OF CONTRACT

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 construed according to and governed by English Law, and the parties irrevocably submit to the jurisdiction of the courts of England.

Last updated: February 2021