CONDITIONS

The Customer’s attention is particularly drawn to the provisions of clause 13 (Limitation of liability).

  • Interpretation   The following definitions and rules of interpretation apply in these Conditions.
    • Definitions:
“Application Form” The credit application form provided by the Supplier to the Customer.
“Business Day” A day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Commencement Date” Has the meaning given in clause 2.2.
“Conditions” These terms and conditions as amended from time to time in accordance with clause 17.8.
“Contract” The contract formed between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions which consists of the Order Acknowledgement to which these Conditions are attached together with these Conditions.
“Customer” The party identified as such in the Order Acknowledgement,  who purchases the Goods and/or Services from the Supplier upon the terms of the Contract.
“Delivery Location” Has the meaning given to it in clause 4.3.
“Designs” Those technical and/or product designs created for the Customer as part of the Design Services where the same are requested by the Customer
“Design Services” Where the same are requested by the Customer, the services, including the Designs, set out in the Order Acknowledgment to be supplied to the Customer in accordance with clause 7.
“Force Majeure Event” Has the meaning given to it in clause 16.
“Goods” Where applicable, the goods (or any part of them) set out in the Order Acknowledgement.
“Goods Specification” Where applicable, any specifications for the Goods, including any relevant plans or drawings, that are set out in the Order Acknowledgement or annexed to it or form part of the same by virtue of the provisions of any Trading Agreement.
“Intellectual Property Rights” Patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
“Order” The Customer’s order for the supply of Goods and/or Services, as referred to at clause 2.1.3, being

(a)            an offer to enter into the Contract upon the terms of the Quotation together with these Conditions, or

(b)             where there is any Trading Agreement between the parties any Order as defined in that Trading Agreement,

Which in either case has been accepted by the Supplier and recorded in the Order Acknowledgement.
“Call-Off / Kanban”

“Order Acknowledgement”

 Agreement to supply goods against a Call-off Plan as set out in Appendix ’A’. Call-Off/Kanban Plan therefore replaces terms as set out in the ‘Main Agreement’ as referenced therein.

The form to which these Conditions are attached setting out the Goods and/or Services the Supplier will supply to the Customer together with the further information set out therein.
“Quotation” Where applicable, that quotation issued in writing by the Supplier to the Customer prior to this Order Acknowledgement to which the Customer has notified its agreement to the Supplier, in response to which the Supplier has issued the Order Acknowledgement
“Services” Where applicable, the services, including where applicable the Design Services, to be supplied by the Supplier to the Customer as set out in the Service Specification.
“Service Specification” Where applicable, the description or specification for the Services to be  provided by the Supplier to the Customer that are set out in the Order Acknowledgement or annexed to it.
“Supplier” Means the party identified as such in the Order Acknowledgement.
“Supplier Materials” Has the meaning given in clause 8.1.6.
“Trading Agreement” Means a form of trading agreement between the parties under which any Order as defined in that trading agreement is subject to these Conditions
  • Interpretation:
    • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    • A reference to a party includes its personal representatives, successors and permitted assigns.
    • A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
    • Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
    • A reference to writing or written includes email but not fax.
    • If there is an inconsistency or ambiguity between any of the provisions of:
      • the Order Acknowledgement;
      • these Conditions;

the provisions of the Order Acknowledgement shall prevail over the provisions of these Conditions unless expressly stated otherwise in writing by the Supplier and the Customer.

  • Basis of contract
    • The Customer has prior to the date of this Contract:
      • Entered into a trading agreement with the Supplier under which these Conditions take effect in relation to any Order (as defined in that trading agreement); or
      • Taken the following steps:
        • Made enquiry of the Supplier in respect of the supply of the Goods and/or the Services;
        • Received the Quotation in respect of the same, to which a copy of these Conditions was attached;
        • Provided (whether by way of a purchase order or written or verbal communication to the Supplier) its approval of the terms set out in the Quotation and these Conditions, thus making the Order. The Order so made was an offer to enter into the Contract on the terms of the Quotation and these Conditions
      • The Order shall only be deemed to be accepted when the Supplier has issued the Order Acknowledgment in writing, which constitutes the Supplier’s written acceptance of the Order at which point, and on which date the Contract shall come into existence (Commencement Date).
      • Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s promotional materials (including websites) 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 unless expressly incorporated into the Goods Specification and/or Services Specification.
      • 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 law, trade custom, practice or course of dealing.
      • Any Quotation given by the Supplier shall not constitute an offer and, unless otherwise agreed in writing by the Supplier, is only valid for a period of 30 days from its date of issue.
      • All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
    • Goods
      • The Goods are described in the Goods Specification. Unless otherwise expressly stipulated in the Goods Specification:
        • any reference as to colour, drawings and similar documents submitted by the Supplier must be regarded as approximate representations only and are not binding in detail;
        • weights, measurements, power, capacities and other particulars are stated in good faith as approximately correct, but deviations therefrom shall not be made the basis of any claims against the Supplier; and
        • minor deviations from the Goods Specification shall not form the basis of any claim against the Supplier.
      • The Customer acknowledges and accepts that the Customer is solely responsible for ensuring the accuracy and suitability of the Goods Specification for the Customer’s needs and purposes. The Supplier shall not be liable for any unsuitability of Goods that are provided in accordance with the Goods Specification.
      • To the extent that the Goods are to be manufactured or supplied in accordance with a Goods Specification supplied by the Customer, the Customer hereby warrants to the Supplier that it has any and all rights (including any and all Intellectual Property Rights) required in order lawfully to commission the manufacture and supply to it of Goods complying with that Goods Specification and the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3 shall survive termination of the Contract.
      • The Supplier reserves the right to halt production and/or supply of goods if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
    • Delivery of Goods
      • The Customer acknowledges and agrees that:
        • The Goods are manufactured on a just-in-time lean manufacturing basis to improve efficiency, where residual stock levels are minimised, and Goods are made to order. As such, insufficient quantities stated in an Order may result in delayed delivery of the Goods. The Customer is responsible for ensuring that its Order quantities are accurate to the Customers’ needs;
        • the Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately subject to the provisions in relation to Payment Dates set out in the Order Acknowledgement. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
        • the supplier may deliver quantities of +/- 10% of the order quantity in the case of bespoke labels and amend the invoice value pro-rata.
      • The Supplier shall ensure that:

each delivery of the Goods shall be made (save where there is express provision for other means on the Order Acknowledgement in which case the terms set out there shall apply) (In certain circumstances the Customer may request deviation from this process, in which case any change must be agreed in writing before commencement.) at the Delivery Location being Supplier’s premises on an ex-works basis (Incoterms 2010 EXW) and shall be accompanied by a Delivery Note which shows all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and the special storage instructions (if any). In certain circumstances the Customer may request deviation from this process, in which case any change must be agreed in writing before commencement.

  • The Supplier shall make the Goods available at the Supplier’s premises specified as the Delivery Location on the order Acknowledgement (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready. The Customer shall take delivery of the Goods by 4pm (or such other time as may be agreed between the parties) on the day on which the Supplier makes them available at the Delivery Location.
  • Delivery of the Goods shall be completed:
    • where the Supplier is responsible for loading the Goods, on the completion of loading of the Goods at the Delivery Location; or
    • where the Customer is responsible for loading the Goods, the Goods’ arrival at the Delivery Location.
  • Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence.
  • 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 delay or failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods, including insufficient quantities as set out in clause 1.1.
  • If the Customer fails to take delivery of the Goods within 7 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:
    • delivery of the Goods shall be deemed to have been completed (and risk in the same to have passed to the Customer in accordance with the terms of clause 6.1) at 9.00 am on the seventh day (or, where this is not a Business Day, the next Business Day) following the day on which the Supplier notified the Customer that the Goods were ready; and
    • the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
  • If twenty Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after including reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
  • Quality of Goods
    • The Customer shall inspect the Goods promptly following delivery and shall notify the Supplier in writing within 7 days if it considers that the Goods are not in accordance with the Goods Specification. Where the Customer does not give such notification, it shall be deemed to have accepted the Goods, and subject to the remainder of this clause 5, shall have no further right to reject the Goods.
    • The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), hardware warranty shall reflect that of the manufacturer and is non-transferable. Repaired or refurbished hardware warranty shall, again, reflect that given by the repair/refurbishment provider, the Goods shall:
      • conform in all material respects with the Goods Specification;
      • be free from material defects in design, material and workmanship; and
      • be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
    • Subject to clause 4, the Supplier shall, at its option, repair or replace any Goods found by the Supplier in its reasonable opinion to be defective (“Defective Goods”), or refund the price of the Defective Goods in full if:
      • the Customer gives notice either:
        • in accordance with clause 1; or
        • 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 2;
      • the Supplier is given a reasonable opportunity of examining such Goods and consider the same in its reasonable opinion to be defective; and;
      • the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost.
    • The Supplier shall not be liable for the Goods’ failure to comply with the Goods Specification or the warranty in clause 2 if:
      • the Customer makes any further use of such Goods after giving a notice in accordance with clause 3;
      • 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;
      • the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
      • the Customer alters or repairs such Goods without the written consent of the Supplier;
      • the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
      • the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
    • Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 2.
    • The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
  • Title and risk
    • The risk in the Goods shall pass to the Customer on completion of delivery.
    • Subject to clause 4, title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.
    • Until title to the Goods has passed to the Customer, the Customer shall:
      • store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
      • not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      • 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;
      • notify the Supplier immediately if it becomes subject to any of the events listed in clause 2.2 to clause 14.2.4; and
      • give the Supplier such information relating to the Goods as the Supplier may require from time to time.
    • Subject to clause 5, the Customer, excepting Software Licencing may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
      • it does so as principal and not as the Supplier’s agent; and
      • title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
      • remaining warranty and any service contracts are not transferrable.
    • If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 2.2 to clause 14.2.4, then, without limiting any other right or remedy the Supplier may have:
      • the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
      • the Supplier may at any time:
        • require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
        • if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
      • Supply of Services
        • The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
        • The Supplier shall use reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
        • The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
        • The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
        • Without prejudice to the general effect of clauses 7.1 to 7.4 and to the Supplier’s rights under clause 9.4.2, where the Services are or include Design Services the following additional provisions will apply:
          • The Service Specification will set out clearly the nature of the Designs to be created and the number of redesigns or reiterations of the Designs to which the Contract applies;
          • Any further redesigns or reiterations of the Designs requested by the Customer over and above those referred to at clause 7.5.1 shall form the subject matter of a further Contract to be entered into in accordance with these Conditions for which separate charges will made;
          • Any costings given or agreed in respect of the construction of any prototype of any Goods is given by way of estimate only on the basis of the initial instructions for Design Services received from the Customer, and the Supplier shall have the right, having regard to the final Designs on the basis of which the Customer confirms a prototype should be constructed, to vary the same having regard to the effect of any redesigns or reiterations of the Designs and/or changes in respect of the same evolved in the course of the provision of the Services.
        • Customer’s obligations
          • The Customer shall:
            • Be responsible for having ensured prior to the issue of the Order that all terms of the Quotation were accurate and comprehensive in all material respects and that any information it provided in or in respect of the Service Specification and/or the Goods Specification were complete and accurate.
            • at all times co-operate with the Supplier in all matters relating to the Services;
            • 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;
            • provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
            • 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;
            • keep all materials, equipment, documents and other property of the Supplier (including, without limitation, any prototypes of any Goods provided by the Supplier to the Customer) (“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;
            • comply with any additional obligations as set out in the Service Specification and/or the Goods Specification and/or the Special Terms as set out in the Order Acknowledgement.
          • If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
            • without limiting or affecting any other right or remedy available to it, the Supplier shall 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
            • 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 2; and
            • 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
            • The price for Goods:
              • shall be the price set out in the Order Acknowledgement delivery or, if no price is quoted, the price set out in the Supplier’s published price list from time to time, subject to any minimum per-order charge which the Supplier from time to time imposes; and
              • shall unless otherwise stated be exclusive of all costs and charges of packaging, insurance, transport of the Goods and VAT, which shall in addition be payable by the Customer where applicable.
            • Unless otherwise specified in an Order, and subject where applicable to the terms of clause 7.5.3, the charges for Services shall be calculated on a time and materials basis such that:
              • the charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in its current price list at the date of the Order Acknowledgement and made available to the Customer at the time of the Quotation;
              • the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
              • the Supplier shall be entitled to charge an overtime rate of [PERCENTAGE]% of the 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 2.2; and
              • 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 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.
            • Where the Supplier has agreed in the Contract to provide Design Services and has made no separate charge in respect of the same as the charges for the same have been absorbed into the price of the Goods to be manufactured to the relevant Design, the Supplier shall in the event of any failure by the Customer to pay in full for all Goods set out in the Order Acknowledgment be entitled to charge for any and all Design Services provided by it in accordance with the terms of clause 9.2
            • The Supplier reserves the right to:
              • increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index;
              • increase the price of the Goods or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of providing the Services to the Supplier that is due to:
                • any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, materials, other manufacturing costs and increases in labour or agency costs).
                • any request by the Customer to change the delivery date(s), quantities or types of Services ordered, or the Services Specification; or
                • any delay caused by any instructions of the Customer in respect of the Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Services.
              • In respect of Goods, the Supplier shall invoice the Customer on or at any time after the date provided in the Payment Dates and Amounts section on the Order Acknowledgement. In respect of Services, the Supplier shall invoice the Customer on or at any time after the date provided in the Payment Dates and Amounts section on the Order Acknowledgement.
              • The Customer shall pay each invoice submitted by the Supplier:
  1. within 30 days of the date of the invoice unless otherwise to be in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer: and
  2. in full and in cleared funds to a bank account nominated in writing by the Supplier, and
  3. time for payment shall be of the essence of the Contract.
    • 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.
    • If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 14 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
    • All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
  • Intellectual property rights
    • Any and all Intellectual Property Rights in or arising out of or in connection with the Services and/or any Designs (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
  • The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy, modify and use for any purposes of or relating to the Contract any designs, materials and/or instructions provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Goods and/or the Services to the Customer. Without prejudice to the effect of clause 3.3, the Customer hereby warrants to the Supplier that it has any and all rights (including any and all Intellectual Property Rights) required in order lawfully to provide any designs, materials or instructions of any nature to be used in any way by the Supplier in the supply of the Goods and/or the Services and/or to order the Goods and/or to commission the Services from the Supplier and the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of any such designs, materials or instructions and/or otherwise arising out of or in connection with the supply of the Goods and/or the Services by the Supplier. This clause 10.2 shall survive termination of the Contract.
  • Where the Supplier provides Design Services to the Customer the Supplier shall retain ownership of any Designs provided under the Design Services, and the Customer shall not be granted any rights in the same (save such rights as may be required to enable the Customer to order the Goods manufactured to the said Design from the Supplier and to make use of the same) until the Customer and the Supplier agree to enter into a design licence in such form as the parties may agree for such remuneration as is specified by the Supplier or for such other consideration as is agreed in writing between the Customer and the Supplier. Where the Customer wishes to enter into such a design licence the Supplier shall provide the proposed terms of the same to the Customer upon request.
  • Data protection
    • The parties acknowledge and agree that neither party intends to process personal data on behalf of the other party under the Contract. Without prejudice to the foregoing, both parties will comply with all applicable requirements of all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
  • Confidentiality
    • Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2.
    • Each party may disclose the other party’s confidential information:
      • to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors, or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
      • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    • Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
  • Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
    • The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5 million per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange, and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
    • The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
    • Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
    • Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
      • death or personal injury caused by negligence;
      • fraud or fraudulent misrepresentation; and
      • breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
    • Subject to clause 4, the Supplier’s total liability to the Customer shall not exceed the total amount payable by the Customer to the Supplier under the Contract
    • Subject to clause 4, the following types of loss are wholly excluded:
      • loss of profits;
      • loss of sales or business;
      • loss of agreements or contracts;
      • loss of anticipated savings;
      • loss of use or corruption of software, data or information;
      • loss of or damage to goodwill; and
      • indirect or consequential loss.
    • The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
    • In any event without prejudice to the terms of clause 5 where applicable, unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire twenty-four months from that date.  The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
    • This clause 13 shall survive termination of the Contract.
  • Termination
    • Without affecting any other right or remedy available to it, the Supplier may terminate the Contract immediately by giving the Customer written notice within three Business Days of the date of the Order Acknowledgement and the order cancelled, excepting ‘Box Ship’ which once acknowledged cannot be cancelled.
    • Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
      • the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
      • the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      • the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
      • the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    • Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
      • the Customer fails to pay any amount due under the Contract on the due date for payment; or
      • there is a change of control of the Customer.
    • Without affecting any other right or remedy available to it, the Supplier may 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 the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 2.2 to clause 14.2.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
  • Consequences of termination
    • On termination of the Contract:
      • the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
      • the Customer shall return all of the Supplier Materials and any Designs (together with all copies and/or adaptations of the same), prototypes of any nature or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them.  Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
    • Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, 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.
    • Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
  • Force majeure
    • Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).
  • General
    • Assignment and other dealings
      • The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
      • The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
      • Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
        • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
        • sent by email to the address specified by that party from time to time.
      • Any notice shall be deemed to have been received:
        • if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
        • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
        • if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 2.2(c), business hours mean 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
      • This clause 2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.  If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.  Any modification to or deletion of a provision or part-provision under this clause 17.3 shall not affect the validity and enforceability of the rest of the Contract.
    • A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.  A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy.  No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    • No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
    • Entire agreement.
      • The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      • Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
      • Nothing in this clause shall limit or exclude any liability for fraud.
    • Third party rights.
      • Unless expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
      • The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
    • Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
    • Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
    • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.