NCD Equipment – Terms & Conditions
1. Definitions and interpretation
1.1 In these Conditions the following definitions apply:
Affiliate means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction;
Bribery Laws means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti corruption and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010;
Business Day means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business;
Conditions means the Supplier’s terms and conditions of sale set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to the Goods, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
Contract means the agreement between the Supplier and the Customer for the sale and purchase of the Goods incorporating these Conditions and the Order, and including all its schedules, attachments, annexures and statements of work;
Customer means the named party in the Contract which has agreed to purchase the Goods from the Supplier and whose details are set out in the Order;
Documentation means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Goods;
Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;
Goods means the goods and other physical material set out in the Order and to be supplied by the Supplier to the Customer in accordance with the Contract;
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in software, rights in goodwill, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:
(a) whether registered or not
(b) including any applications to protect or register such rights
(c) including all renewals and extensions of such rights or applications
(d) whether vested, contingent or future
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
Location means the address or addresses for delivery of the Goods as set out in the Order or such other address or addresses as notified by the Supplier to the Customer at least 7 Business Days prior to shipping;
Manufacturer means the company that manufactures the Goods and supplies them to the Supplier;
Modern Slavery Policy means the Supplier’s anti-slavery and human trafficking policy in force and notified to the Customer from time to time;
MSA Offence has the meaning given in clause 11.2.1;
Order means an order for the Goods from the Supplier placed by the Customer in substantially the same form set out in the Supplier’s sales order form;
Price has the meaning given in clause 3.1;
Specification means the description or Documentation provided for the Goods and their packaging set out or referred to in the Contract;
Supplier means NCD Equipment Limited, company number 09185394, registered office address 1349/1353 London Road, Leigh-On-Sea, Essex, SS9 2AB;
VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods; and
Warranty Period has the meaning given in clause 1.1.
1.2 In these Conditions, unless the context requires otherwise:
1.2.1 a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);
1.2.2 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;
1.2.3 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6 a reference to a gender includes each other gender;
1.2.7 words in the singular include the plural and vice versa;
1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form;
1.2.10 a reference to legislation is a reference to that legislation as amended, extended, re enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract;
1.2.11 a reference to legislation includes all subordinate legislation made from time to time under that legislation; and
1.2.12 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2. Application of these conditions
2.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Supplier and the Customer respectively.
2.4 Each Order by the Customer to the Supplier shall be an offer to purchase the Goods subject to the Contract including these Conditions.
2.5 If the Supplier is unable to accept an Order, it shall notify the Customer in writing as soon as reasonably practicable.
2.6 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods shall arise, until the earlier of:
2.6.1 the Supplier’s written acceptance of the Order; or
2.6.2 the Supplier dispatching the Goods or notifying the Customer that they are available for collection (as the case may be).
2.7 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.8 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply the Goods and are incapable of being accepted by the Customer. An Offer shall only be accepted when confirmed in writing by the Supplier.
2.9 Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.
3. Price
3.1 The price for the Goods shall be as set out in the Order or, where no such provision is set out, shall be as advised by the Supplier from time to time before the date the Order is placed (the Price).
3.2 The Prices are exclusive of:
3.2.1 packaging, delivery, insurance, shipping carriage, and all other related charges or taxes or describe relevant elements of the goods which are not included in the standard price which shall be charged in addition at the Supplier’s standard rates, and
3.2.2 VAT (or equivalent sales tax).
3.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
3.4 The Supplier may increase the Prices at any time by giving the Customer not less than 10 Business Days’ notice in writing such notice to confirm the timescale in which the Customer may cancel their order due to the price change.
3.5 Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Goods and which is due to any factor beyond the control of the Supplier.
3.6 If the Customer wishes to cancel upon receipt of a notice under clause 3.4 or clause 3.5, they must do so by confirming their wish to cancel in writing to the Supplier within the timescale specified in the Supplier’s notice.
4. Payment
4.1 The Supplier shall invoice the Customer for the Goods, partially or in full, at any time following acceptance of the Order.
4.2 The Customer shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within 5 Business Days of the date of each invoice; and
4.2.2 to the bank account nominated by the Supplier.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
4.3.1 the Supplier may, without limiting its other rights, charge interest on such sums at 8% a year above the base rate of the Bank of England from time to time in force, and
4.3.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
4.4 The Supplier may request payment of a 10% deposit at the point of the Customer placing the Order and any such deposit will be refundable upon cancellation but the Supplier may first deduct their costs up to the point of cancellation prior to returning the deposit balance to the Customer.
5. Hiring Goods
5.1 Where a Customer is hiring goods as opposed to placing an Order for purchase, the following terms of this clause 5 will apply in addition to the remainder of these terms. Where there is a conflict between this clause 5 and any other provision of these terms, this clause 5 will take precedence.
5.2 The Customer must notify the Supplier of the Goods intended for hire, the duration of the hire period, and the proposed purpose of the hire. An Order for hire will only be complete when the Supplier confirms in writing to the Customer that their Order can be fulfilled.
5.3 If the Customer wishes to extend the period of their hire during their initial fixed hire period they must notify the Supplier in writing of their intention to extend confirming the additional period for which they wish to hire the Goods and the Supplier will confirm whether this is acceptable and the cost for the extended hire period.
5.4 The Goods must be returned to the Supplier on the final day of the initial hire period and the Customer will be responsible for arranging delivery or collection as may have been agreed with the Supplier.
5.5 Upon placing an order to hire Goods the Customer must provide the Supplier with their full payment details, and these will be held by the Supplier for the duration of the hire period.
5.6 Payment will be taken by the Supplier at the end of the fixed hire period agreed between Supplier and Customer. Where an extension is agreed the Supplier will take payment for the initial hire period at the end of that hire period, and will take payment for the additional hire period once the Goods have been returned to the Supplier.
5.7 A minimum hire period of 14 days will apply to every Order for hire.
5.8 The Customer will be charged at a fixed daily rate for every day they retain the Goods after the agreed return date.
5.9 If the Supplier is unable to obtain payment using the details provided by the Customer the balance due will be immediately payable by the Customer and the Supplier will be entitled to charge interest on the unpaid amount at 8% a year above the base rate of the Bank of England from time to time in force, and interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
6. Credit limit
The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
7. Delivery
7.1 The Goods shall be delivered by the Supplier’s nominated carrier, to the Location on the date specified in the Order.
7.2 The Goods shall be deemed delivered on arrival of the Goods at the Location by the Supplier’s nominated carrier.
7.3 The Supplier will not be liable for the delivery of the Goods, but will make reasonable enquiries as to the status of the Goods.
7.4 The Goods may be delivered in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7.5 The Customer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.
7.6 Delivery of the Goods shall be accompanied by a delivery note stating:
7.6.1 the date of the Order;
7.6.2 the product numbers, type and quantity of the Goods in the consignment; and
7.6.3 any special handling instructions.
7.7 Time of delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet delivery dates but such dates are indicative only. The Supplier accepts no liability on the delivery of the Goods.
7.8 The Supplier shall not be liable for any delay in or failure of delivery, including but not limited to, those caused by:
7.8.1 the Customer’s failure to make the Location available;
7.8.2 the Customer’s failure to prepare the Location as required for delivery of the Goods;
7.8.3 the Customer’s failure to provide the Supplier with adequate instructions for delivery and installation or otherwise relating to the Goods;
7.8.4 Force Majeure.
7.9 If the Customer fails to accept delivery of the Goods, the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.
7.10 If 5 Business Days following the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods without any obligation or liability to the Customer, except as provided for in clauses 6.11.1 and 6.11.2. The Supplier shall:
7.10.1 deduct all reasonable storage charges and costs of resale; and
7.10.2 account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Goods.
7.11 If the Customer refuses to accept delivery of the Goods on the basis the Goods are faulty they must notify the Supplier of the issue within 7 days of the delivery date and the Supplier will have opportunity to arrange attendance to inspect the Goods and ascertain the issue.
8. Risk
Risk in the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.
9. Title
9.1 Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.
9.2 Until title to the Goods has passed to the Customer, the Customer shall:
9.2.1 inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 16.1.1 to 16.1.4 or 16.2.1 to 1.1; and
9.3 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 16.1.1 to 16.3, the Supplier may:
9.3.1 require the Customer at the Customer’s expense to re-deliver the Goods to the Supplier; and
9.3.2 if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
10. Warranty
10.1 The terms of any warranty provided by the Manufacturer will be assigned to the Customer upon receipt of the funds.
10.2 A copy of the warranty terms will be sent to the Customer upon the sale of the Goods.
10.3 The Customer warrants that it has provided the Supplier in writing with all relevant, full and accurate information as to the Customer’s business and needs.
10.4 Where possible the Supplier will provide the Customer with a manual for use of the Goods, and the Customer warrants to the Supplier that they will use and operate the Goods strictly in accordance with the manual.
10.5 If the Customer finds fault with the Goods they must notify the Supplier within 7 days of noticing the fault and the Supplier will arrange an inspection of the Goods. Following inspection the Supplier will:-
10.5.1 Notify the Customer the fault is due to use not in accordance with the manual provided for the Goods and there is no fault of the Supplier;
10.5.2 Confirm the origin of the fault and endeavour to resolve the issue but the Supplier will accept no liability or responsibility for any repairs and this will be strictly at the Customer’s expense and any assistance provided shall not signify guilt or fault on the part of the Supplier; or
10.5.3 Confirm there is a fault with the Goods and assist the Customer where possible to make a claim under any Manufacturer’s warranty.
10.6 The Supplier gives no warranty under any circumstance for any Goods.
11. Anti-bribery
11.1 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
11.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
11.2.1 all of its personnel;
11.2.2 all others associated with it; and
11.2.3 all of its subcontractors;
involved in performing the Contract so comply.
11.3 Without limitation to clause 10.2, neither party shall make or receive any bribe (which term shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage or allow any such bribe or improper payment or advantage to be made or received on its behalf, either in the United Kingdom or elsewhere and shall implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.
11.4 The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach or possible breach by the Customer of any of the requirements in this clause 10.
11.5 Any breach of this clause 10 by the Customer shall be deemed a material breach of the Contract that is not remediable and shall entitle the Supplier to immediately terminate the Contract by notice under clause 16.1.1.
12. Anti-slavery
12.1 The Supplier shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.
12.2 The Customer undertakes, warrants and represents that:
12.2.1 neither the Customer nor any of its officers, employees, agents or subcontractors has:
(a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
12.2.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;
12.2.3 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the Supplier on request at any time throughout the Contract;
12.2.4 its responses to the Supplier’s modern slavery and human trafficking due diligence questionnaire are complete and accurate; and
12.3 The Customer shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 11.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
12.4 Any breach of clause 11.2 by the Customer shall be deemed a material breach of the Contract and shall entitle the Supplier to terminate the Contract with immediate effect.
13. Indemnity and insurance
13.1 The Customer shall indemnify the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses which the Supplier may suffer or incur directly or indirectly from the Customer’s breach of any of its obligations under the Contract.
13.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom or such other country by agreement in writing with the Supplier to cover its obligations under the Contract. On request, the Customer shall supply (so far as is reasonable) evidence of the maintenance of the insurance and all of its terms from time to time applicable.
14. Limitation of liability
14.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 13.
14.2 Subject to clauses 13.5 and 13.6, the Supplier’s total liability shall not exceed the sum of the price paid or to be paid by the Customer.
14.3 Subject to clauses 13.5 and 13.6, the Supplier shall not be liable for consequential, indirect or special losses.
14.4 Subject to clauses 13.5 and 13.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
14.4.1 loss of profit;
14.4.2 loss of revenue;
14.4.3 loss or corruption of data;
14.4.4 loss or corruption of software or systems;
14.4.5 loss or damage to equipment;
14.4.6 loss of use;
14.4.7 loss of production;
14.4.8 loss of contract;
14.4.9 loss of commercial opportunity;
14.4.10 loss of savings, discount or rebate (whether actual or anticipated);
14.4.11 harm to reputation or loss of goodwill; and/or
14.4.12 wasted expenditure.
14.5 The limitations of liability set out in clauses 13.2 to 13.4 shall not apply in respect of any indemnities given by either party under the Contract.
14.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
14.6.1 death or personal injury caused by negligence;
14.6.2 fraud or fraudulent misrepresentation;
14.6.3 any other losses which cannot be excluded or limited by Applicable Law;
14.6.4 any losses caused by wilful misconduct.
15. Confidentiality and announcements
15.1 The Customer shall keep confidential all Confidential Information of the Supplier and of any Affiliate of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
15.1.1 any information which was in the public domain at the date of the Contract;
15.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
15.1.3 any information which is independently developed by the Customer without using information supplied by the Supplier or by any Affiliate of the Supplier; or
15.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
15.2 This clause 14 shall remain in force in perpetuity.
15.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
16. Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 30 days, either party may terminate the Contract by written notice to the other party.
17. Termination
17.1 The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
17.1.1 the Customer commits a material breach of the Contract and such breach is not remediable;
17.1.2 the Customer commits a material breach of the Contract which is not remedied within 14 Business Days of receiving written notice of such breach;
17.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid 14 days after the date that the Supplier has given notification to the Customer that the payment is overdue; or
17.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
17.2 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
17.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
17.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
17.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
17.2.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
17.2.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
17.2.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
17.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
17.2.8 has a resolution passed for its winding up;
17.2.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
17.2.10 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within 7 days of that procedure being commenced;
17.2.11 has a freezing order made against it;
17.2.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
17.2.13 is subject to any events or circumstances analogous to those in clauses 16.2.1 to 16.2.12 in any jurisdiction.
17.3 The Supplier may terminate the Contract any time by giving not less than 4 weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
17.4 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 166, it shall immediately notify the Supplier in writing.
17.5 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
18. Notices
18.1 Any notice or other communication given by a party under these Conditions shall:
18.1.1 be in writing and in English;
18.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
18.1.3 be sent to the relevant party at the address set out in the Contract.
18.2 Notices may be given, and are deemed received:
18.2.1 by hand: on receipt of a signature at the time of delivery;
18.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
18.2.3 by Royal Mail International Tracked & Signed post: at 9.00 am on the fourth Business Day after posting;
18.2.4 by fax: on receipt of a transmission report from the correct number confirming uninterrupted and error-free transmission; and
18.2.5 by email on receipt of a read receipt email from the correct address.
18.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 17.1 and shall be effective:
18.3.1 on the date specified in the notice as being the date of such change; or
18.3.2 if no date is so specified, 10 Business Days after the notice is deemed to be received.
18.4 This clause 17 does not apply to notices given in legal proceedings or arbitration.
19. Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
20. Time
Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.
21. Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
22. Entire agreement
22.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
22.2 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
22.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
23. Variation
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
24. Assignment
24.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, which it may withhold or delay at its absolute discretion.
25. Set-off
25.1 The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the Supplier has with the Customer.
25.2 The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
26. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
27. Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
28. Severance
28.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
28.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
29. Waiver
29.1 No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
29.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
30. Compliance with law
The Customer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
31. Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.
32. Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
33. Third party rights
33.1 Except as expressly provided for in clause 32.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
33.2 Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.
34. Dispute resolution
34.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 33.
34.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
34.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
34.3.1 Within 20 Business Days of service of the notice, a representative of each of the parties shall meet to discuss the dispute and attempt to resolve it.
34.3.2 If the dispute has not been resolved within 6 months of the first meeting of the representatives, either party may issue formal legal proceedings.
34.4 The Parties may only issue legal proceedings once the steps referred to in clause 33.3 have been completed.
35. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
36. Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).