1 Definitions
1.1 Unless varied by agreement between the
parties, the following definitions shall apply:
Business Day: a
day other than a Saturday, Sunday, public holiday or bank holiday in England.
Buyer: the
entity so described in the Contract, or in the absence of a Contract, in the Order.
Buyer Facilities: the Buyer’s premises as agreed between the parties.
Commissioning: following
Installation, the preliminary use of the Equipment to ensure it is working as
expected, in accordance with the Specification and in a safe manner; prior to
use by the Buyer in the ordinary course of business. “Commissioned” shall be
construed accordingly.
Conditions: the
terms and conditions contained within this document.
Confidential Information: any and all
information of a confidential nature relating to the performance of obligations
under the Contract including without limitation intellectual property rights,
know-how, business information including without limitation technical, customer
or personal data.
Contract: the
agreement entered into between the Buyer and Supplier for the provision of the
Equipment or Equipment and Services, where applicable, for the avoidance of any
doubt, the Buyer’s purchase order backed by or referencing these Conditions and
Specification may constitute the Contract.
Control: the
ability to direct the decisions or affairs, directly or indirectly, of another
whether by ownership of voting securities or otherwise.
Data Protection Legislation: (a) the EC Data Protection Directive 95/46/EC or any
implementing or related legislation in any member state of the European
Economic Area; (b) the EC Directive on Privacy and Electronic Communications
(Directive 2002/58/EC) or any implementing or related legislation in any member
state in the European Economic Area; and (c) all other applicable laws and
regulations in any jurisdiction relating to or impacting on the processing of personal
data, all as may be amended and supplemented from time to time.
Delivery: delivery
of the Equipment to the Buyer Facilities DDP.
Delivery Date:
the date on which the Equipment is delivered to the Buyer Facilities, if the
Equipment is delivered in instalments, this shall be the date on which the
final instalment of Equipment is delivered.
Equipment: the
goods, machinery or other products, including related accessories, spare parts
and documentation, as set out in the Order to be supplied according to the
Specification.
Force Majeure Event: any cause beyond the reasonable control of the party affected (after
exercise of reasonable care to put in place disaster recovery arrangements) which
prevents or delays the party from performing its obligations under the
Contract, including without limitation act of God, flood, fire, earthquake or
other natural disaster, explosion, war, terrorism; and strike, lock-out,
industrial action except involving the Supplier’s or its suppliers’ workforce.
Insolvent: bankruptcy,
suspension or threatened suspension of debts or inability to pay debts as they
fall due, entering negotiations with any creditors to reschedule debts, passing
of resolution for winding up or a court ordered winding up order is given, a
step is taken to appoint a receiver or administrator, or anything analogous to
the foregoing in any jurisdiction.
Installation: putting
the Equipment in place, whether by fixture to the Buyer’s Facilities or
otherwise, in preparation for the Equipment being utilised in accordance with
the Specification, or purpose notified to the Supplier by the Buyer. “Installed”
shall be construed accordingly.
Intellectual Property: any patent, copyright, trade mark, brand name, trade name, know-how,
rights in Confidential Information, in each case whether registered or not and
in whichever part of the world such rights exist.
Order: the
document requesting the supply of the Equipment or Equipment and Services,
where applicable, by way of purchase order with these Conditions attached or
referenced.
Price: the
agreed monies to be paid by the Buyer to the Supplier for the Equipment or
Equipment and Services, as set out in the Order.
Services: the Installation
and Commissioning of the Equipment provided by the Supplier, including any
technical support, as set out in the Order and Specification.
Specification:
the agreed particulars of the Equipment, or Equipment and Services, where
applicable, including where given, any intended uses of the Equipment.
Supplier: the entity
selling the Equipment or Equipment and Services, where applicable.
Supplier Personnel: the employees, agents, contractors or other persons acting under the
instruction of the Supplier in performance of the Contract.
1.2 Unless the context otherwise requires;
(a) each gender includes the other, (b) the singular includes the plural and vice
versa, (c) general words are not
limited by example, (d) references to clauses are to the clauses in these
Conditions, and (e) references to
any legislation will be construed as a reference to that provision as amended,
re-enacted or extended at the relevant time.
2
Orders
2.2 For the avoidance of any doubt, should
the Buyer send any documentation to the Supplier containing or referring to the
Supplier’s general conditions or similar terms, in whole or part, they shall
have no effect of the Contract and / or the Conditions and are expressly
excluded and shall not be binding on the Buyer.
2.3 An Order shall be accepted when the
Supplier expressly accepts as at clause 2.1 or when the Buyer reasonably
considers that the conduct of the Supplier is consistent with acceptance.
2.5 The Supplier shall be able to amend
the Order with the prior written consent of the Buyer where such amendment does
not materially affect the performance of the Equipment nor its conformity to
the Specification.
3
Customs
3.1 Notwithstanding anything in the agreed
Incoterm to the contrary, the Supplier shall be responsible for ensuring all
documentation, approvals / permits and obligations are fulfilled to ensure that
the Equipment is cleared for both export and import, where applicable. The
Buyer shall assist where necessary to give effect to the above.
4
Specification
4.1 The parties shall agree the Specification
in advance, and conformity with this Specification shall be a condition of the
Contract, except in the circumstances where compliance with such Specification
may be unlawful, in such circumstances only the part deemed unlawful shall be
excepted from this obligation.
4.2 Upon issuing the Specification for the
Equipment, the Supplier represents that it is capable of manufacturing the
Equipment to good industry standards expected of a manufacturer of the same or
analogous types of equipment.
4.3 The Intellectual Property rights
relating to the Equipment, including, without limitation, the designs,
drawings, calculations, formulae, software given to the Buyer by the Supplier
shall remain the property of the Supplier, except where agreed between the
parties.
4.4 Where relevant, the Supplier grants to
the Buyer, a free, unlimited, non-exclusive licence to use the Equipment and any
software relating to the use or operation of the Equipment.
5
Price & Payment
5.1 Price shall be as stated in the Order,
or in default of such provision, the price shall be calculated in accordance
with the scale of charges as advised by the Supplier prior to the Order being
placed. No increase in price may be made after the Order is placed.
5.2 The Supplier shall not be entitled to
increase the Price should their costs to produce the Equipment increase.
5.3 The Price shall be exclusive of any
applicable Value Added Tax, which shall be charged to the Buyer at the then
applicable rate.
5.4 Notwithstanding anything from the
Supplier to the contrary, the currency for the payment shall be Euros (€).
5.6 Time shall not be of the essence with
regard to payment of monies due to the Supplier. Where any payments are not
paid in full according to clause 5.5, by way of compensation to the
Supplier, the Buyer shall pay interest on the overdue sum on a daily basis
until the payment is made in full at a rate of 2% per annum above the Bank of
England base rate. The Supplier acknowledges that this is a substantial remedy
for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 In the event that payment has not been
made within the agreed timeframe, the Supplier shall not be entitled to delay performance
of the Services.
5.8 The Buyer may set off any liabilities which
it has to the Supplier against any other liabilities under the Contract or any
Order or which it has to the Supplier howsoever arising.
6
Delivery
6.1 The Supplier shall ensure that all
Equipment shall be properly packaged during transit to the Buyer Facilities and
adequate insurance is in place to cover any potential damage or loss to the
Equipment.
6.3 Time shall be of the essence with
regard to Delivery, if the Supplier notifies the Buyer in accordance with
clause 6.2 the Buyer shall be entitled, in its
sole discretion and without prejudice to any other rights and remedies, to (a) terminate
the Contract (in whole or part), or (b) recover from the Supplier all costs and
losses resulting to the Buyer, including where applicable any difference in
price should the Buyer have to source either the Equipment or Services from
another supplier.
6.4 Taking delivery of the Equipment shall
not constitute acceptance, the Equipment will not be deemed to be accepted
until the Services are completed and the Buyer has expressly confirmed to the
Supplier that the Equipment adheres to the Specification. The Buyer may reject
the Equipment which is not in compliance with the Specification. Any acceptance
of defective, late or incomplete Equipment or payment made in respect thereof
shall not constitute a waiver of any of the Buyer’s rights and remedies
including its right to reject. Any rejected Equipment may be returned to the
Supplier at the Supplier’s cost and risk.
6.5 Unless as expressly agreed between the
parties, the Supplier shall not deliver the Equipment in more than one
delivery.
6.6 Supplier shall take all reasonable
steps customary, practicable or applicable in connection with handling the Equipment
to ensure that, as far as possible, any risk to health or safety is eliminated
or reduced to which delivery, loading, unloading or use of the Equipment may
give rise.
7
Services
7.1 The Supplier shall supply all
equipment, tools, or otherwise to enable the carrying out and completion of the
Delivery and Services.
7.2 Where (1) applicable, or (2) provided
by the Supplier in the normal course of business or (3) if requested by the
Buyer; Supplier shall assist with the Installation and Commissioning of the
Equipment.
7.4 Time shall be of the essence with
regard to completion of the Services, if the Supplier notifies the Buyer in accordance
with clause 7.3 the Buyer shall be entitled, in its
sole discretion and without prejudice to any other rights and remedies, to (a)
terminate the Contract (in whole or part), or (b) recover from the Supplier all
costs and losses resulting to the Buyer, including where applicable any
difference in price should the Buyer have to source the Services from another
supplier.
7.5 The Supplier shall ensure that all Supplier
Personnel comply with all applicable legislation or regulations, the Buyer’s
site safety rules, and all policies which will be notified to the Supplier in
advance. Buyer shall not be liable to the Supplier for any failure of the Supplier
or Supplier Personnel to observe the provisions of this Condition.
8
Risk & Title
8.1 Notwithstanding anything to the
contrary (including reference to Incoterms 2010), upon Delivery of the
Equipment to the nominated Buyer Facilities, title to the Equipment shall pass
to the Buyer. The passing of title shall not prejudice any of the Buyer’s
rights and remedies, including the right to reject.
8.2 Notwithstanding anything to the
contrary (including reference to Incoterms 2010), the risk of any loss, deterioration
or damage to the Equipment, shall pass to the Buyer at the latter of the
following, and subject to the inspection by the Buyer and confirmation that the
Equipment and Services conform to the Specification and warranties given by the
Supplier:
8.2.1 If the Equipment is being delivered, Installed
and Commissioned by the Supplier, risk passes at completion of Commissioning.
8.2.2 If the Equipment is being delivered
and Installed (without any Commissioning) by the Supplier, risk passes at
completion of the Installation.
8.2.3 If the Equipment is only being
delivered (without any Services) by the Supplier, risk passes at the time the
Equipment is delivered to the nominated Buyer Facilities.
9
Quality and Warranties
9.2 The Supplier warrants that for a
period of not less than 24 months following the completion of the latter of Delivery
or Services, any failure or defect of the Equipment (excluding fair wear and
tear) shall be repaired or replaced at the Supplier’s sole expense including
without limitation replacement parts, labour and travel. Upon any failure or
defect of the Equipment, the Buyer shall promptly notify the Supplier, and
Supplier shall use best endeavours to rectify the failure or defect.
9.3 If the Equipment fails to comply with
the warranty give at 9.1, the Supplier shall (notwithstanding whether the Equipment has been used
since Commissioning): (a) replace all or part of the Equipment which fails to
comply with the warranty or (b) refund the Buyer as agreed between the parties.
9.6 If the Services fail to comply with
the warranty give at 9.4, the Supplier shall (notwithstanding whether the Equipment has been used
since Commissioning): (a) redo any of the Services which fails to comply with
the warranty or (b) refund the Buyer as agreed between the parties.
9.7 The Supplier agrees that the approval
of the Specification or acceptance of the Equipment shall not relieve the
Supplier of any of its obligations under this Condition.
9.8 The Supplier shall indemnify the Buyer
for any injury or death to any person, or damage to property caused by any
negligent act or omission or wilful misconduct of the Supplier or Supplier
Personnel carrying out the Services, or due to any defect in the Equipment.
9.9 The Supplier warrants that it owns the
Intellectual Property rights to the Equipment, including, without limitation,
the designs, drawings, calculations, formulae, software; or is otherwise able
to perform its obligations herein under a licence, or similar.
9.10
Should
the Supplier fail to perform its obligations under clauses 9.3 and 9.6, the Buyer may procure such repair,
replacement, or similar from a third party, and the Buyer may recover any and
all costs involved from the Supplier.
10
Liability and Indemnity
10.1
The
Supplier shall indemnify and keep the Buyer indemnified against all claims,
costs and expenses which the Buyer may suffer or incur directly or indirectly
as a result of Supplier’s breach of any of the Supplier’s obligations under the
Contract.
10.2
Notwithstanding
anything in the agreed Incoterm to the contrary, the Supplier shall have in
place or obtain insurance against all risks to the Equipment to the full value
of the Equipment until such risk transfers to the Buyer under the Contract, and
to cover all other obligations and / or liabilities under the Contract. At the
reasonable request of the Buyer, the Supplier shall provide evidence of the
insurance policy.
10.3
The
Buyer’s total liability howsoever arising in respect of its performance under
the Contract, whether in contract, tort (including negligence or breach of
statutory duty), misrepresentation, restitution or otherwise shall be limited
to the Order value.
10.4
The
Buyer excludes all liability to the fullest extent permissible by law, however
nothing in these Conditions shall seek to limit the liability for (a) death or
personal injury caused to the Supplier’s Personnel, should this be as a result
of the Buyer’s negligence or wilful misconduct, (b) fraudulent
misrepresentation, or (c) in a manner or to an extent not permissible by law.
10.5
The
rights and remedies provided for the Buyer within the Contract are cumulative
and not exclusive of any rights and / or remedies provided by law.
10.6
Neither
party shall be liable to the other for any indirect or consequential loss or
damage, including without limitation, loss of profit, loss of business or
depletion of goodwill.
10.7
The
Supplier shall fully indemnify and hold the Buyer harmless against any and all
claims, disputes, and actions or threatened claims, disputes or actions
relating to the actual or potential infringement of any third party Intellectual
Property rights relating to the Equipment.
11.1
The
parties may disclose certain Confidential Information to the other, the parties
shall only use the Confidential Information as required to perform the Contract
and, subject to clause 11.3, shall not, without the prior written
consent of the party disclosing such Confidential Information, disclose such
information to any third party whatsoever except where (a) the information was
already in the public domain or known by party at the time of disclosure, (b) the
information is subsequently in the public domain other than by breach of these
Conditions or (c) the party lawfully comes into the possession of the information
from a third party.
11.2
The
Supplier acknowledges that Delivery and/ performance of the Services at the
Buyer Facilities may involve access to certain information which may be
confidential, whether this is in writing, oral or visual. The Seller
acknowledges that all information received during a visit to the Buyer’s Facilities,
whether written, oral or visual, is confidential to the Buyer and the Supplier
is obligated to keep such information confidential.
11.4
This
clause shall remain in effect for a period of 10 years from the Order date.
11.5
Subject
only to clause 11.3, the Supplier shall not make any
public announcement or disclose any information relating to the Contract.
12
Force Majeure
12.1
A
party shall not be in breach of these conditions or otherwise liable to the
other party for any failure or delay in performing its obligations under these Conditions
to the extent that such delay is due to a Force Majeure Event. The party
claiming such Force Majeure Event shall immediately notify the other party and
shall use best endeavours to keep the other party informed and provide a date
upon which the party reasonably believes it shall be able to continue to
perform the obligations. Should the Force Majeure Event last more than 30
Business Days, the other party may at its sole discretion (a) terminate the
agreement with immediate effect or (b) renegotiate the Contract to achieve, as
far as practicable, the original commercial intent of the parties. Costs
arising from a Force Majeure Event shall be borne by the party incurring such
costs.
13
Termination
13.1
Without
prejudice to any other provision of these Conditions, the Buyer shall be
entitled to terminate the Contract with immediate effect on written notice and without
any liability to the Supplier if the Supplier:
13.1.1
Commits
a material breach of the Contract which is either incapable of remedy or
capable of remedy and Supplier has failed to remedy within 20 Business Days
13.1.2
Becomes
Insolvent
13.1.3
Declares
a Force Majeure Event which is to last more than 30 Business Days
13.1.4
Suspends
trading, ceases to carry on business, or threatens to do either or there is a
material change in ownership or Control of the Supplier
13.2
Upon
termination, any clause which expressly or by implication is to survive termination
shall do so.
13.3
Termination
shall be without prejudice to any rights or liabilities accrued at the date of
termination, however following termination, subject to clause 11, neither party shall have any further
obligations to the other.
14
Notices
14.1
Any
notices required to be given by one party to another, shall be in writing and
sent to the relevant address specified in the Contract or if no address is
specified, the registered office of that party, or such address which may have
been notified to the party from time to time in accordance with these Conditions.
14.2
Notices
sent by pre-paid first class post or international courier shall be deemed to
be served three Business Days after posting; notices sent by email shall be
deemed to be served when confirmation is posted, those delivered by hand will
be deemed served at the time of delivery.
15
Relationship of the Parties
15.1
Nothing
in these Conditions shall have the effect of creating any relationship of
employee / employer, agent, representative or other relationship or authority
to carry out acts on behalf of the other. At all times, the Supplier shall be
responsible for the acts and omissions of the Supplier Personnel.
15.2
Subject
to clause 17.3 and 17.5, nothing within these Conditions
shall entitle third parties to enforce any of the Conditions contained herein
and the parties do not intend any of the provisions of the Contracts (Rights of
Third parties) Act 1999 or similar to apply or be enforceable by any party who
is not a party to the Contract.
16
Disputes and Jurisdiction
16.1
The
Contract shall be governed by and construed in accordance with English law, and
the parties agree to submit to the exclusive jurisdiction of the English Courts.
16.2
The
parties agree to use their respective reasonable endeavours to promptly resolve
any issues or disputes which may arise in connection with the Contract.
16.3
If
any dispute is not resolved between the parties within 30 Business Days, either
party may refer the matter to be finally resolved by arbitration under the
UNCITRAL Rules in force at the date of this agreement. The tribunal shall
consist of a sole arbitrator to be agreed between the parties, in default of
the parties’ agreement, the appointing authority shall be LCIA. The seat of the
arbitration shall be London, the law governing the agreement is English and the
language of arbitration shall be English.
17
General
17.1
Except
as provided for above at clause 2.4, no variation to these Conditions may
be made except in writing and signed by a duly authorised representative of
each party.
17.2
Should
any condition or part thereof be held to be void, illegal or unenforceable by a
court of competent jurisdiction, that provision or part thereof shall not
affect the validity of the remainder of the Conditions, and all remaining Conditions
shall continue in full force and effect. At the discretion of the Buyer, the Condition
or part thereof which is deemed to be invalid shall be replaced with a similar
condition giving effect to the original intention of the parties.
17.4
Each
right or remedy under these Conditions is without prejudice to any other right
or remedy the Buyer has under the Contract or otherwise. No failure by the
Buyer to enforce any of its rights under the Conditions shall constitute a
waiver of those rights now or in the future for the same or any future event.
17.6
Each
party shall, at all times, comply with their respective obligations with regard
to applicable Data Protection Legislation and except where unavoidable, neither
party shall provide any personal data to the other in connection with this
Contract.
17.7
These
Conditions have been drafted in English and the English version shall prevail
in the event of a differing translation thereof. Where any Contract
documentation is provided in English and one or more other languages, the
English version shall prevail in the event of a differing translation thereof.
17.8
The
headings in the Conditions are for guidance only and will have no effect on the
interpretation of these Conditions.
17.9
The
parties agree that the Contract constitutes the entire agreement between them
in respect of this subject matter. Each party acknowledges that it has not
entered into this agreement in reliance on any representation or warranty that
is not set out herein.
17.10
Should
there be any conflict between the provisions of the relevant documents
comprising the Contract, the order of precedence shall be (1) the Order, (2)
the Specification, and (3) these Conditions.