ABAGY LIMITED’S
General Terms and Conditions for Supply of Goods and/or Services (B2B)
ABAGY LIMITED’S
General Terms and Conditions for Supply of Goods and/or Services (B2B)
NOTICES:
The following terms of supply apply to orders placed by business customers only. A customer is classified as a business customer if it is purchasing goods and/or services wholly or mainly in connection with its trade, business, craft, or profession.
The Customer's attention is particularly drawn to the provisions of clause 2.6, 11.3, 13 and 16.
GENERAL TERMS AND CONDITIONS
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Acceptance Certificate
means the notice of acceptance provided by the Customer to the Supplier, substantially in the form set out in Schedule 1 (Acceptance Certificate) in accordance with clause 8.1;
Acceptance Date
means the date certified by the Customer as the date when the Goods and/or the Services have passed the Acceptance Tests and the Goods and/or the Services have been completed in accordance with the Contract;
Acceptance Tests
means the tests to be carried out on the Goods and/or Services in accordance with the provisions of the Contract to confirm that the Goods or Services comply with the terms of the Contract and/or such other tests as the parties may agree in writing after delivery of the Goods and before the Acceptance Date;
Business Day
means a day other than a Saturday, Sunday, or public holiday when the banks are open for general banking business in the Republic of Cyprus;
Commencement Date
has the meaning given thereto in clause 2.7;
Conditions
mean these terms and conditions as amended from time to time in accordance with 20.8;
Consumer
means an individual who purchases the Goods and/or (as applicable) Services from the Supplier, wholly or mainly for their personal use (not for use in connection with their trade, business, craft, or profession);
Contract
means the contract between the Supplier and the Customer for the supply of the Goods and/or (as applicable) Services in accordance with these Conditions;
Customer
means a person or firm who is not a Consumer and purchases the Goods and/or (as applicable) Services from the Supplier;
Customer Materials
means all materials, equipment and tools, drawings, specifications, and data supplied by the Customer to the Supplier;
Data Protection Legislation
means:
(a) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data;
(b) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; or
(c) all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data, including the privacy of electronic communications and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
(a) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the party is subject, which relates to the protection of personal data;
(b) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; or
(c) all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data, including the privacy of electronic communications and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
Deliverables
means the key deliverables set out in the Order which are produced by the Supplier for the Customer as part of supplying its services under this Contract;
Delivery Date
means the date(s) specified for delivery of the Goods and/or Services (as applicable) as set out in the Order;
Delivery Location
means the delivery and/or the performance location set out in the Order or such other location as the parties may agree in writing;
EUR or Euro
means the payment currency of the European Union;
Force Majeure Event
has the meaning given thereto in 19;
Goods
means any goods (including any part of them) agreed in the Contract to be supplied to the Customer by the Supplier;
Goods Specification
means any specification or instructions for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier and set out in the Order;
Intellectual Property Rights
means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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;
Notice Period
for the purpose of clause 16.7, 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 three (3) months from that date;
Order
means the Customer's order for the supply of Goods and/or Services, made by made by completing and submitting the Supplier’s order form;
Service Specification
means any description or specification for the Services that is agreed in writing by the Customer and the Supplier;
Services
means the services, including any Deliverables, agreed in the Contract to be provided by the Supplier to the Customer and set out in the Order;
Supplier
means ABAGY LIMITED, a company incorporated and registered in the Republic of Cyprus with company registration number HE 401087;
Supplier Materials
means all materials, equipment, documents, and other property of the Supplier; and
Warranty Period
means a period of 12 months from the date of delivery, or if longer, any period specified in the Order.
1.2 Interpretation:
(a) The contents table and the descriptive headings to clauses, Schedules and paragraphs in this Contract are included for convenience only, have no legal effect and shall be ignored in the interpretation of this Contract.
(b) The Schedules form part of the Contract and shall have effect as if set out in full in the body of the Contract. Any reference to the Contract includes the Schedules.
(c) References to clauses and Schedules are to the clauses and Schedules of the Contract.
(d) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(e) A reference to a party includes its personal representatives, successors and permitted assigns.
(f) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(g) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(h) A reference to writing or written excludes fax and email.
(a) The contents table and the descriptive headings to clauses, Schedules and paragraphs in this Contract are included for convenience only, have no legal effect and shall be ignored in the interpretation of this Contract.
(b) The Schedules form part of the Contract and shall have effect as if set out in full in the body of the Contract. Any reference to the Contract includes the Schedules.
(c) References to clauses and Schedules are to the clauses and Schedules of the Contract.
(d) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(e) A reference to a party includes its personal representatives, successors and permitted assigns.
(f) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(g) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(h) A reference to writing or written excludes fax and email.
2. BASIS OF CONTRACT AND SCOPE OF APPLICATION
2.1 These Conditions apply to:
(a) all transactions for the delivery of goods and provision of services by the Supplier to its Customers; and
(b) 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.
2.2 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents of the Customer that is inconsistent with these Conditions.
2.3 By submitting an Order to the Supplier, the Customer hereby warrants and undertakes to the Supplier, that the Customer wishes to purchase the Goods and/or (as applicable) Services as a business customer (and not, for the avoidance of any doubt, as a consumer).
2.4 Each Order shall be deemed to be a separate binding contractual offer by the Customer to purchase the Goods and/or (as applicable) Services in accordance with these Conditions, which the Supplier shall be free to accept or decline at its absolute discretion.
2.5 Any quotation given by the Supplier shall not constitute an offer and is only valid for a fixed period as set out in the Supplier’s written proposal.
2.6 The Customer is responsible for ensuring that the terms of the Order and any applicable specifications are complete and accurate.
2.7 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (“Commencement Date”).
2.8 After acceptance of the Order, changes to the Order requested by the Customer shall only be possible with the Supplier’s written consent and are subject to indemnification.
2.9 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are produced or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.
2.10 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.1 These Conditions apply to:
(a) all transactions for the delivery of goods and provision of services by the Supplier to its Customers; and
(b) 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.
2.2 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents of the Customer that is inconsistent with these Conditions.
2.3 By submitting an Order to the Supplier, the Customer hereby warrants and undertakes to the Supplier, that the Customer wishes to purchase the Goods and/or (as applicable) Services as a business customer (and not, for the avoidance of any doubt, as a consumer).
2.4 Each Order shall be deemed to be a separate binding contractual offer by the Customer to purchase the Goods and/or (as applicable) Services in accordance with these Conditions, which the Supplier shall be free to accept or decline at its absolute discretion.
2.5 Any quotation given by the Supplier shall not constitute an offer and is only valid for a fixed period as set out in the Supplier’s written proposal.
2.6 The Customer is responsible for ensuring that the terms of the Order and any applicable specifications are complete and accurate.
2.7 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point, and on which date the Contract shall come into existence (“Commencement Date”).
2.8 After acceptance of the Order, changes to the Order requested by the Customer shall only be possible with the Supplier’s written consent and are subject to indemnification.
2.9 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are produced or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.
2.10 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. GOODS
3.1 The Goods are described in the Order.
3.2 If the Goods are prepared in accordance with Goods Specification, the Customer must ensure that:
(a) the Goods Specification is complete and accurate;
(b) the Customer Materials will be free from any defects and compatible with the Goods and Goods Specification; and
(c) the Goods Specification will not result in the infringement of any Intellectual Property Rights of a third party, or in the breach of any applicable law or regulation.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event except that the Supplier shall be entitled to make such changes without notice to the Customer if only minor modifications to the Goods Specification is necessary.
3.1 The Goods are described in the Order.
3.2 If the Goods are prepared in accordance with Goods Specification, the Customer must ensure that:
(a) the Goods Specification is complete and accurate;
(b) the Customer Materials will be free from any defects and compatible with the Goods and Goods Specification; and
(c) the Goods Specification will not result in the infringement of any Intellectual Property Rights of a third party, or in the breach of any applicable law or regulation.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event except that the Supplier shall be entitled to make such changes without notice to the Customer if only minor modifications to the Goods Specification is necessary.
4. SERVICES
4.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
4.2 The Supplier shall use all 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.
4.3 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.
4.4 In supplying the Services, the Supplier shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the Service Specification;
(c) comply with all applicable laws, statutes, and regulations in force from time to time, provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
(d) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to the Supplier in advance, provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(e) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
4.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
4.2 The Supplier shall use all 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.
4.3 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.
4.4 In supplying the Services, the Supplier shall:
(a) perform the Services with reasonable care and skill;
(b) use reasonable endeavours to perform the Services in accordance with the Service Specification;
(c) comply with all applicable laws, statutes, and regulations in force from time to time, provided that the Supplier shall not be liable under the Contract if, as a result of such compliance, it is in breach of any of its obligations under the Contract;
(d) observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and have been communicated to the Supplier in advance, provided that the Supplier shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract; and
(e) take reasonable care of all Customer Materials in its possession and make them available for collection by the Customer on reasonable notice and request, always provided that the Supplier may destroy the Customer Materials if the Customer fails to collect the Customer Materials within a reasonable period after termination of the Contract.
5. PRICE
5.1 The price for the Goods:
(a) shall be the price set out in the Order; and
(b) unless otherwise stated in writing, shall be inclusive of all costs and charges for administration, packaging, insurance, transport, and delivery of the Goods to the Delivery Location.
5.2 The price for the Services shall be calculated as set out in the Order.
5.3 The Supplier shall be entitled to charge the Customer for additional sums in respect of:
(a) any time worked by individuals whom it engages on the Services outside the agreed time periods;
(b) 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
(c) the cost of services provided by third parties and required by the Supplier for the performance of the Services.
5.4 The Supplier reserves the right to increase the price of the Goods and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods and/or Services to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials, and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities, or types of Goods and/or Services ordered; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or Services, or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods or Services.
5.5 All sums payable to the Supplier under this Contract:
(a) are exclusive of amounts in respect of applicable taxes and/or duties and any charges or imposts of any kind including value added tax, sales taxes, excise duties and import or export duties or fees. The Customer shall in addition to the price for the Goods and Services pay, on receipt of a valid invoice from the Supplier, an amount equal to any such amounts as are chargeable on those sums;
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by applicable law). If the Customer is require to withhold or deduct any tax, it shall, when making the payment to which the withholding or deduction relates, pay to the Supplier such additional amount as will ensure that the Supplier receives the same total amount that it would have received if no such withholding or deduction had been required unless required by law to pay the net amount, in which case the Customer shall fully co-operate with the Supplier and shall provide such assistance and documentary evidence as requested in order for the Supplier to re-claim the withheld tax from the relevant tax authority; and
(c) shall be paid in EUR or such other currency as the Supplier may agree with the Customer from time to time.
5.1 The price for the Goods:
(a) shall be the price set out in the Order; and
(b) unless otherwise stated in writing, shall be inclusive of all costs and charges for administration, packaging, insurance, transport, and delivery of the Goods to the Delivery Location.
5.2 The price for the Services shall be calculated as set out in the Order.
5.3 The Supplier shall be entitled to charge the Customer for additional sums in respect of:
(a) any time worked by individuals whom it engages on the Services outside the agreed time periods;
(b) 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
(c) the cost of services provided by third parties and required by the Supplier for the performance of the Services.
5.4 The Supplier reserves the right to increase the price of the Goods and/or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods and/or Services to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials, and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities, or types of Goods and/or Services ordered; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or Services, or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods or Services.
5.5 All sums payable to the Supplier under this Contract:
(a) are exclusive of amounts in respect of applicable taxes and/or duties and any charges or imposts of any kind including value added tax, sales taxes, excise duties and import or export duties or fees. The Customer shall in addition to the price for the Goods and Services pay, on receipt of a valid invoice from the Supplier, an amount equal to any such amounts as are chargeable on those sums;
(b) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by applicable law). If the Customer is require to withhold or deduct any tax, it shall, when making the payment to which the withholding or deduction relates, pay to the Supplier such additional amount as will ensure that the Supplier receives the same total amount that it would have received if no such withholding or deduction had been required unless required by law to pay the net amount, in which case the Customer shall fully co-operate with the Supplier and shall provide such assistance and documentary evidence as requested in order for the Supplier to re-claim the withheld tax from the relevant tax authority; and
(c) shall be paid in EUR or such other currency as the Supplier may agree with the Customer from time to time.
6. PAYMENT
6.1 The Supplier shall invoice the Customer at such intervals as deemed fit by the Supplier at its sole discretion or as may be agreed by the parties and set out in the Order.
6.2 The Customer shall pay invoices in full in cleared funds within ten (10) Business Days of the invoice date. Payment shall be made to the bank account nominated in writing by the Seller.
6.3 Time for payment is of the essence. The date(s) for payment shall be binding, even if transport, delivery, erection, commissioning, or acceptance of the Goods shall be delayed or made impossible by circumstances beyond the Supplier’s control and not attributable to the Supplier. Payment shall be affected punctually even if consequential work shall be found necessary to any of the Goods delivered.
6.4 If the Customer fails to pay the Supplier in full by or on the applicable due date, then, without limiting the Supplier's remedies under 17, the Supplier may:
(a) cancel any discount offered to the Customer;
(b) suspend or cancel all future deliveries until payment has been made in full; and/or
(c) charge the Customer interest on the overdue sum from the due date at the annual rate of 4% above the Central Bank of Cyprus' base rate from time to time or at the annual rate of 4% for any period when that base rate is below 0%, accruing on a daily basis until full payment is made, whether before or after judgment.
6.1 The Supplier shall invoice the Customer at such intervals as deemed fit by the Supplier at its sole discretion or as may be agreed by the parties and set out in the Order.
6.2 The Customer shall pay invoices in full in cleared funds within ten (10) Business Days of the invoice date. Payment shall be made to the bank account nominated in writing by the Seller.
6.3 Time for payment is of the essence. The date(s) for payment shall be binding, even if transport, delivery, erection, commissioning, or acceptance of the Goods shall be delayed or made impossible by circumstances beyond the Supplier’s control and not attributable to the Supplier. Payment shall be affected punctually even if consequential work shall be found necessary to any of the Goods delivered.
6.4 If the Customer fails to pay the Supplier in full by or on the applicable due date, then, without limiting the Supplier's remedies under 17, the Supplier may:
(a) cancel any discount offered to the Customer;
(b) suspend or cancel all future deliveries until payment has been made in full; and/or
(c) charge the Customer interest on the overdue sum from the due date at the annual rate of 4% above the Central Bank of Cyprus' base rate from time to time or at the annual rate of 4% for any period when that base rate is below 0%, accruing on a daily basis until full payment is made, whether before or after judgment.
7. DELIVERY
7.1 References to Goods in this clause 7 shall also include Deliverables where Services are being provided under the Contract.
7.2 The Supplier shall deliver the Goods to the Delivery Location at any time after the Supplier notifies the Customer that the Goods are ready.
7.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods by the Supplier at the Delivery Location.
7.4 Delivery Dates are approximate only, and the time of delivery is not of the essence.
7.5 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable).
7.6 The Customer shall inspect the Goods on delivery. If the Supplier has failed to deliver any Goods, the Customer shall notify the Supplier within five (5) Business Days of the expected delivery or date.
7.7 Subject to the Customer complying with clause 7.6 but excluding where clause 7.8 applies, if the Supplier fails to deliver the Goods to the Delivery Location by the relevant Delivery Date, its liability shall be limited to the reasonable 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.
7.8 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 or any other instructions that are relevant to the supply of the Goods.
7.9 If the Customer fails to accept delivery of the Goods when the Supplier attempts to deliver such Goods, 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:
(a) delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready or at the time on the day on which the Supplier attempted to deliver the Goods to the Customer; and
(b) the Supplier shall store the Goods until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance).
7.10 If ten (10) Business Days after the day on which the Supplier notified the Customer that the Supplier’s delivery attempt failed and the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, if the Supplier resells the Goods, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods or if charge the Customer for the full price of the Goods if the Supplier is unable to resell them.
7.11 The Supplier may deliver the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7.1 References to Goods in this clause 7 shall also include Deliverables where Services are being provided under the Contract.
7.2 The Supplier shall deliver the Goods to the Delivery Location at any time after the Supplier notifies the Customer that the Goods are ready.
7.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods by the Supplier at the Delivery Location.
7.4 Delivery Dates are approximate only, and the time of delivery is not of the essence.
7.5 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable).
7.6 The Customer shall inspect the Goods on delivery. If the Supplier has failed to deliver any Goods, the Customer shall notify the Supplier within five (5) Business Days of the expected delivery or date.
7.7 Subject to the Customer complying with clause 7.6 but excluding where clause 7.8 applies, if the Supplier fails to deliver the Goods to the Delivery Location by the relevant Delivery Date, its liability shall be limited to the reasonable 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.
7.8 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 or any other instructions that are relevant to the supply of the Goods.
7.9 If the Customer fails to accept delivery of the Goods when the Supplier attempts to deliver such Goods, 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:
(a) delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready or at the time on the day on which the Supplier attempted to deliver the Goods to the Customer; and
(b) the Supplier shall store the Goods until actual delivery takes place and charge the Customer for all related costs and expenses (including insurance).
7.10 If ten (10) Business Days after the day on which the Supplier notified the Customer that the Supplier’s delivery attempt failed and the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, if the Supplier resells the Goods, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods or if charge the Customer for the full price of the Goods if the Supplier is unable to resell them.
7.11 The Supplier may deliver the Goods by instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
8. ACCEPTANCE AND TESTS
8.1 The Goods and Services are deemed accepted when the Customer provides the Supplier with a duly executed Acceptance Certificate in accordance with this clause 8.
8.2 Final acceptance or rejection of the Goods and/or Services will be made as promptly as practical after delivery except as otherwise provided in the Order. The Customer shall give to the Supplier in writing, seven (7) days' prior notice or such shorter notice as may be agreed between the parties, of the date when it will be ready to commence Acceptance Tests.
The Supplier shall provide all necessary equipment and labour to carry out the Acceptance Tests.
8.3 The Acceptance Tests shall take place on such date(s) and at such location(s) as agreed between the parties.
8.4 If the Customer fails to ensure the presence of its duly authorised representatives on the appointed date for the Acceptance Tests, the Supplier shall be entitled to proceed in its absence and the said tests shall be deemed to have been made in the presence of the Customer and copies of all documents produced as a result of the tests shall be made available to the Customer.
8.5 If the Goods or any portion thereof fails to pass the Acceptance Tests, the Acceptance Tests shall be repeated within a reasonable time upon the same terms and conditions but at the sole expense of the Supplier, unless such failure is due to defective and/or incompatible Customer Materials or incorrect Goods and/Services Specifications in which case the Customer shall be liable for all of the additional costs and expenses.
8.6 In the event that the repeat Acceptance Tests show that the Goods and/or Services are not in accordance with the specification set out in the Order, then the Supplier shall, at its option:
(a) repair or replace any Goods and/or Deliverables that are found to be defective or refund the price of such defective Goods and/or Deliverables in full in accordance with clause 11.2; or
(b) offer such defective Goods and/or Deliverables to the Customer at a reduced price, subject to the Customer’s acceptance of such Goods or Deliverables and reduced price.
8.7 As soon as the Services have been completed in accordance with the Contract and both the Goods and the Services have passed the Acceptance Tests, the Customer shall issue an Acceptance Certificate to the Supplier, containing the Acceptance Date and any outstanding minor defects in any of the Services and/or the Goods. The Supplier shall rectify such defects to the satisfaction of the Customer at its expense within a reasonable time.
8.8 If by agreement between the parties, any part of the Services is satisfactorily completed in advance or after the relevant date for Acceptance Tests, the Customer may issue an Acceptance Certificate in respect of that said part of Services.
8.1 The Goods and Services are deemed accepted when the Customer provides the Supplier with a duly executed Acceptance Certificate in accordance with this clause 8.
8.2 Final acceptance or rejection of the Goods and/or Services will be made as promptly as practical after delivery except as otherwise provided in the Order. The Customer shall give to the Supplier in writing, seven (7) days' prior notice or such shorter notice as may be agreed between the parties, of the date when it will be ready to commence Acceptance Tests.
The Supplier shall provide all necessary equipment and labour to carry out the Acceptance Tests.
8.3 The Acceptance Tests shall take place on such date(s) and at such location(s) as agreed between the parties.
8.4 If the Customer fails to ensure the presence of its duly authorised representatives on the appointed date for the Acceptance Tests, the Supplier shall be entitled to proceed in its absence and the said tests shall be deemed to have been made in the presence of the Customer and copies of all documents produced as a result of the tests shall be made available to the Customer.
8.5 If the Goods or any portion thereof fails to pass the Acceptance Tests, the Acceptance Tests shall be repeated within a reasonable time upon the same terms and conditions but at the sole expense of the Supplier, unless such failure is due to defective and/or incompatible Customer Materials or incorrect Goods and/Services Specifications in which case the Customer shall be liable for all of the additional costs and expenses.
8.6 In the event that the repeat Acceptance Tests show that the Goods and/or Services are not in accordance with the specification set out in the Order, then the Supplier shall, at its option:
(a) repair or replace any Goods and/or Deliverables that are found to be defective or refund the price of such defective Goods and/or Deliverables in full in accordance with clause 11.2; or
(b) offer such defective Goods and/or Deliverables to the Customer at a reduced price, subject to the Customer’s acceptance of such Goods or Deliverables and reduced price.
8.7 As soon as the Services have been completed in accordance with the Contract and both the Goods and the Services have passed the Acceptance Tests, the Customer shall issue an Acceptance Certificate to the Supplier, containing the Acceptance Date and any outstanding minor defects in any of the Services and/or the Goods. The Supplier shall rectify such defects to the satisfaction of the Customer at its expense within a reasonable time.
8.8 If by agreement between the parties, any part of the Services is satisfactorily completed in advance or after the relevant date for Acceptance Tests, the Customer may issue an Acceptance Certificate in respect of that said part of Services.
9. TITLE AND RISK
9.1 The risk in the Goods shall pass to the Customer on completion of unloading of the Goods at the Delivery Location.
9.2 Title to the Goods shall only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them.
9.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface, or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the Delivery Date;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in 17.2(b)to 17.2(d);and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the financial position of the Customer.
9.4 The Supplier may recover any Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 9.3, and to recover any Goods in which property has not passed to the Customer.
9.1 The risk in the Goods shall pass to the Customer on completion of unloading of the Goods at the Delivery Location.
9.2 Title to the Goods shall only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them.
9.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface, or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the Delivery Date;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in 17.2(b)to 17.2(d);and
(e) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the financial position of the Customer.
9.4 The Supplier may recover any Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 9.3, and to recover any Goods in which property has not passed to the Customer.
10. CUSTOMER'S OBLIGATIONS
10.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides as part of Goods Specification and/or Service Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the supply of the Goods and/or (as applicable) Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, in a timely manner and at no charge, with access to the Customer's premises, office accommodation, data centre and other facilities as required by the Supplier or any of them, to provide the Services;
(d) provide the Supplier, in a timely manner, with such information and materials as the Supplier may require in order to supply Goods and/or (as applicable) Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services;
(f) 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;
(g) comply with all applicable laws, including health and safety laws;
(h) keep 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; and
(i) comply with any additional obligations as set out in the Goods Specification and/or Service Specification.
10.2 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, its agents, subcontractors, consultants or employees, or failure by the Customer to perform any relevant obligation (“Customer Default”):
(a) 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;
(b) the Supplier shall not be liable for any costs, charges 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 10.2;
(c) the Supplier shall be entitled to payment of all charges payable by the Customer for the supply of the Goods and/or (as applicable) Services by the Supplier, despite any such prevention or delay;
(d) the Customer shall reimburse the Supplier on written demand for any costs, charges or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default; and
(e) any relevant Delivery Date shall be extended to such date as reasonably requested by the Supplier.
10.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides as part of Goods Specification and/or Service Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the supply of the Goods and/or (as applicable) Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, in a timely manner and at no charge, with access to the Customer's premises, office accommodation, data centre and other facilities as required by the Supplier or any of them, to provide the Services;
(d) provide the Supplier, in a timely manner, with such information and materials as the Supplier may require in order to supply Goods and/or (as applicable) Services, and ensure that such information is complete and accurate in all material respects;
(e) prepare the Customer's premises for the supply of the Services;
(f) 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;
(g) comply with all applicable laws, including health and safety laws;
(h) keep 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; and
(i) comply with any additional obligations as set out in the Goods Specification and/or Service Specification.
10.2 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, its agents, subcontractors, consultants or employees, or failure by the Customer to perform any relevant obligation (“Customer Default”):
(a) 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;
(b) the Supplier shall not be liable for any costs, charges 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 10.2;
(c) the Supplier shall be entitled to payment of all charges payable by the Customer for the supply of the Goods and/or (as applicable) Services by the Supplier, despite any such prevention or delay;
(d) the Customer shall reimburse the Supplier on written demand for any costs, charges or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default; and
(e) any relevant Delivery Date shall be extended to such date as reasonably requested by the Supplier.
11. WARRANTY
11.1 The Supplier warrants that:
(a) on delivery, and for the duration of the Warranty Period, the Goods shall:
(i)conform in all material respects with their description and any applicable Goods Specification set out in the Order;
(ii) be free from material defects in design, material and workmanship.
(b) the Services will be provided using reasonable care and skills and the Deliverables will comply in all material respects with their descriptions as set out in the Order.
11.2 Subject to 11.3 and 16.9, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods and/or Deliverables do not comply with the warranty set out in 11.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods and/or Deliverables; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods and/or Deliverables to the Supplier's place of business at the Supplier’s cost,
the Supplier shall, at its option, repair or replace any Goods and/or Deliverables that are found to be defective or refund the price of such defective Goods and/or Deliverables in full.
11.3 The Supplier shall not be liable for the Services’ or Goods' failure to comply with the warranty set out in 11.1 if:
(a) the Customer makes any further use of such Goods or Deliverables after giving a notice in accordance with 11.2;
(b) 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 Deliverables or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods or Deliverables without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods or Deliverables differ from their description set out in the Order as a result of changes made pursuant to clause 3.3 or 4.3 (as applicable).
11.4 The Supplier’s only liability to the Customer if the Goods and/or Services fail to comply with the warranties set out in in 11.1 is as set out in 11.2.
11.5 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in 11.1. In view of these commitments, all other warranties or conditions, (whether express or implied) as to quality, condition, description, compliance with sample, fitness for purpose, statutory or otherwise, are excluded from the Contract to the fullest extent permitted by law.
11.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
11.1 The Supplier warrants that:
(a) on delivery, and for the duration of the Warranty Period, the Goods shall:
(i)conform in all material respects with their description and any applicable Goods Specification set out in the Order;
(ii) be free from material defects in design, material and workmanship.
(b) the Services will be provided using reasonable care and skills and the Deliverables will comply in all material respects with their descriptions as set out in the Order.
11.2 Subject to 11.3 and 16.9, if:
(a) the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods and/or Deliverables do not comply with the warranty set out in 11.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods and/or Deliverables; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods and/or Deliverables to the Supplier's place of business at the Supplier’s cost,
the Supplier shall, at its option, repair or replace any Goods and/or Deliverables that are found to be defective or refund the price of such defective Goods and/or Deliverables in full.
11.3 The Supplier shall not be liable for the Services’ or Goods' failure to comply with the warranty set out in 11.1 if:
(a) the Customer makes any further use of such Goods or Deliverables after giving a notice in accordance with 11.2;
(b) 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 Deliverables or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods or Deliverables without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods or Deliverables differ from their description set out in the Order as a result of changes made pursuant to clause 3.3 or 4.3 (as applicable).
11.4 The Supplier’s only liability to the Customer if the Goods and/or Services fail to comply with the warranties set out in in 11.1 is as set out in 11.2.
11.5 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in 11.1. In view of these commitments, all other warranties or conditions, (whether express or implied) as to quality, condition, description, compliance with sample, fitness for purpose, statutory or otherwise, are excluded from the Contract to the fullest extent permitted by law.
11.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 The Customer accepts and acknowledges that all Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services (other than Intellectual Property Rights in any Customer Materials) shall be owned by the Supplier or its licensors.
12.2 The Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Supplier Materials. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
12.3 Unless agreed in the Order, the Customer shall have no rights in respect of Intellectual Property Rights in the Supplier Materials (including, without limitation, no licence to use and/or copy any designs, drawings and/or other documents produced in respect of the Order or otherwise by and/or on behalf of the Supplier and/or any employees, agents and/or contractors of the Supplier).
12.4 The Customer shall not sub-license, assign or otherwise transfer the rights granted by 12.3.
12.5 The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services and/or supplying the Goods to the Customer.
12.1 The Customer accepts and acknowledges that all Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services (other than Intellectual Property Rights in any Customer Materials) shall be owned by the Supplier or its licensors.
12.2 The Supplier and its licensors shall retain ownership of all Intellectual Property Rights in the Supplier Materials. The Customer and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials.
12.3 Unless agreed in the Order, the Customer shall have no rights in respect of Intellectual Property Rights in the Supplier Materials (including, without limitation, no licence to use and/or copy any designs, drawings and/or other documents produced in respect of the Order or otherwise by and/or on behalf of the Supplier and/or any employees, agents and/or contractors of the Supplier).
12.4 The Customer shall not sub-license, assign or otherwise transfer the rights granted by 12.3.
12.5 The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services and/or supplying the Goods to the Customer.
13. INDEMNITY
13.1 The Customer shall indemnify the Supplier in full against all liabilities, costs, expenses, damages, and losses (including but not limited to 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, where applicable in the relevant jurisdiction) and all and other reasonable professional costs and expenses) suffered or incurred by the Supplier arising of or in connection with:
(a) any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights and the receipt or use of the Customer Materials by the Supplier.
(b) the Customer’s failure to comply with its payment obligations under this Contract when due.
13.2 This clause 13 shall survive termination of the Contract.
13.1 The Customer shall indemnify the Supplier in full against all liabilities, costs, expenses, damages, and losses (including but not limited to 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, where applicable in the relevant jurisdiction) and all and other reasonable professional costs and expenses) suffered or incurred by the Supplier arising of or in connection with:
(a) any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights and the receipt or use of the Customer Materials by the Supplier.
(b) the Customer’s failure to comply with its payment obligations under this Contract when due.
13.2 This clause 13 shall survive termination of the Contract.
14. CONFIDENTIALITY
14.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by 14.2.
14.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, or advisers to whom it discloses the other party's confidential information comply with this 14; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
14.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by 14.2.
14.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, or advisers to whom it discloses the other party's confidential information comply with this 14; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
15. DATA PROTECTION
15.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove, or replace, a party's obligations under the Data Protection Legislation.
15.2 In this clause 15, Applicable Data Processing Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
15.3 For the avoidance of doubt, the terms “data controller”, “data processor”, “data subject”, “processing” and “personal data” bear the respective meanings given in the Data Protection Legislation.
15.4 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
15.5 The Supplier shall process all personal data as a data processor under the Contract in accordance with the relevant terms of the Contract and the following specification:
(a) Scope: Personal data in relation to this Contract must only be processed for the purposes detailed in clause 15.5(c).
(b) Nature of the processing: any processing operation regarding the personal data such as collecting, recording, organising, structuring, storage, adaption or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of personal data (whether or not by automated means).
(c) Purpose of the processing: to facilitate performance of Supplier’s obligations under the Contract.
(d) Duration of the processing: the term of the Contract, except to the extent required under applicable law to preserve the personal data.
(e) Plan for destruction of the personal data once the processing is complete: seven years from delivery or termination of the Contract.
(f) The types of personal data that will be processed: name, email address, telephone number, work address, payment details.
(g) The categories of data subject are: sole traders, employees, directors and shareholders.
15.6 Without prejudice to the generality of clause 15.1:
(a) the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract; and
(b) the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(i) process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Data Processing Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Data Processing Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;
(ii) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(iii) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(iv) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(A) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(B) the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(C) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(D) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(v) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(vi) notify the Customer without undue delay on becoming aware of a personal data breach;
(vii) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
(vii) maintain complete and accurate records and information to demonstrate its compliance with this clause 15 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
15.7 The Customer consents to the Supplier appointing credit reference agencies, banks, credit insurers, suppliers, and sub-contractors as third-party processor(s) of personal data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processors into a written agreement incorporating terms which are substantially similar to those set out in this clause 15 and in either case which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor (with respect to the processing of personal data) appointed by it pursuant to this clause 15.
15.8 The Supplier is entitled to appoint or replace a third party processor with the prior written consent of the Customer (such consent not be to unreasonably withheld or delayed).
15.9 Either party may, at any time on not less than 30 days’ notice, revise this clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
15.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove, or replace, a party's obligations under the Data Protection Legislation.
15.2 In this clause 15, Applicable Data Processing Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
15.3 For the avoidance of doubt, the terms “data controller”, “data processor”, “data subject”, “processing” and “personal data” bear the respective meanings given in the Data Protection Legislation.
15.4 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
15.5 The Supplier shall process all personal data as a data processor under the Contract in accordance with the relevant terms of the Contract and the following specification:
(a) Scope: Personal data in relation to this Contract must only be processed for the purposes detailed in clause 15.5(c).
(b) Nature of the processing: any processing operation regarding the personal data such as collecting, recording, organising, structuring, storage, adaption or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of personal data (whether or not by automated means).
(c) Purpose of the processing: to facilitate performance of Supplier’s obligations under the Contract.
(d) Duration of the processing: the term of the Contract, except to the extent required under applicable law to preserve the personal data.
(e) Plan for destruction of the personal data once the processing is complete: seven years from delivery or termination of the Contract.
(f) The types of personal data that will be processed: name, email address, telephone number, work address, payment details.
(g) The categories of data subject are: sole traders, employees, directors and shareholders.
15.6 Without prejudice to the generality of clause 15.1:
(a) the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract; and
(b) the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:
(i) process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Applicable Data Processing Laws to otherwise process that personal data. Where the Supplier is relying on Applicable Data Processing Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;
(ii) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(iii) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
(iv) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(A) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(B) the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(C) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(D) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;
(v) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(vi) notify the Customer without undue delay on becoming aware of a personal data breach;
(vii) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and
(vii) maintain complete and accurate records and information to demonstrate its compliance with this clause 15 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
15.7 The Customer consents to the Supplier appointing credit reference agencies, banks, credit insurers, suppliers, and sub-contractors as third-party processor(s) of personal data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processors into a written agreement incorporating terms which are substantially similar to those set out in this clause 15 and in either case which the Supplier confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor (with respect to the processing of personal data) appointed by it pursuant to this clause 15.
15.8 The Supplier is entitled to appoint or replace a third party processor with the prior written consent of the Customer (such consent not be to unreasonably withheld or delayed).
15.9 Either party may, at any time on not less than 30 days’ notice, revise this clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
16. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
16.1 References to liability in this 16 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution, breach of statutory duty or otherwise.
16.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
16.3 Nothing in the Contract limits any liability which can not legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms as to title in the Goods, insofar as they are implied by law; and
defective products under product liability laws; or
(d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
16.4 Subject to 16.2 and 16.3, the Supplier's total liability to the Customer shall not exceed the greater of five hundred thousand (5,000.00) USD and seventy per cent (70%) of the total sums paid and/or payable by the Customer for Goods and Services under this Contract.
16.5 This 16.5 sets out specific heads of excluded loss:
(a) Subject to 16.2 and 16.3, the type of losses listed in clause 16.5(b) are wholly excluded by the parties. Subject to that, 16.5(b) excludes specified types of loss.
(b) The following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
16.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in 11.1. In view of these commitments, the terms implied by any applicable law are, to the fullest extent permitted by law, excluded from the Contract.
16.7 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the relevant Notice Period, the Supplier shall have no liability for that event. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
16.8 The Customer assumes sole responsibility for results obtained from the use of the Goods and Services, and for operating the Goods. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Goods or Services, or any actions taken by the Supplier at the Customer’s direction.
16.9 The Customer shall be liable for any damage or delays caused as a result of using a defective or incompatible equipment with the Supplier’s Goods or Services. If such equipment is capable of repair, the Customer shall arrange, at its own costs and expenses, such repairs to be carried out within ten (10) Business Days from the date of being requested to do so by the Supplier. Unless and until such repairs are carried out to the satisfaction of the Supplier, the Supplier shall not be obliged to perform the remainder of its obligations under this Contract.
16.10 This 16 shall survive termination of the Contract.
16.1 References to liability in this 16 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution, breach of statutory duty or otherwise.
16.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
16.3 Nothing in the Contract limits any liability which can not legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms as to title in the Goods, insofar as they are implied by law; and
defective products under product liability laws; or
(d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
16.4 Subject to 16.2 and 16.3, the Supplier's total liability to the Customer shall not exceed the greater of five hundred thousand (5,000.00) USD and seventy per cent (70%) of the total sums paid and/or payable by the Customer for Goods and Services under this Contract.
16.5 This 16.5 sets out specific heads of excluded loss:
(a) Subject to 16.2 and 16.3, the type of losses listed in clause 16.5(b) are wholly excluded by the parties. Subject to that, 16.5(b) excludes specified types of loss.
(b) The following types of loss are wholly excluded:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; and
(vii) indirect or consequential loss.
16.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in 11.1. In view of these commitments, the terms implied by any applicable law are, to the fullest extent permitted by law, excluded from the Contract.
16.7 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the relevant Notice Period, the Supplier shall have no liability for that event. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
16.8 The Customer assumes sole responsibility for results obtained from the use of the Goods and Services, and for operating the Goods. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Goods or Services, or any actions taken by the Supplier at the Customer’s direction.
16.9 The Customer shall be liable for any damage or delays caused as a result of using a defective or incompatible equipment with the Supplier’s Goods or Services. If such equipment is capable of repair, the Customer shall arrange, at its own costs and expenses, such repairs to be carried out within ten (10) Business Days from the date of being requested to do so by the Supplier. Unless and until such repairs are carried out to the satisfaction of the Supplier, the Supplier shall not be obliged to perform the remainder of its obligations under this Contract.
16.10 This 16 shall survive termination of the Contract.
17. TERMINATION
17.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than ninety (90) Business Days' written notice.
17.2 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:
(a) the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of ninety (90) Business Days after being notified in writing to do so;
(b) 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;
(c) 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
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
17.3 Without affecting any other right or remedy available to it, the Supplier may:
(a) 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 and remains in default not less than fourteen (14) days after being notified in writing to make such payment.
(b) suspend the supply of Services and/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 17.2(b) to 17.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
17.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than ninety (90) Business Days' written notice.
17.2 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:
(a) the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of ninety (90) Business Days after being notified in writing to do so;
(b) 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;
(c) 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
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s reasonable opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
17.3 Without affecting any other right or remedy available to it, the Supplier may:
(a) 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 and remains in default not less than fourteen (14) days after being notified in writing to make such payment.
(b) suspend the supply of Services and/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 17.2(b) to 17.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
18. CONSEQUENCES OF TERMINATION
18.1 On termination of the Contract for whatever reason, the Customer shall:
(a) 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;
(b) return all of the Supplier Materials and any Deliverables and/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.
18.2 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.
18.3 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.
18.1 On termination of the Contract for whatever reason, the Customer shall:
(a) 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;
(b) return all of the Supplier Materials and any Deliverables and/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.
18.2 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.
18.3 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.
19. FORCE MAJEURE
19.1 Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”).
19.2 Provided it has complied with clause 19.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
19.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
19.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than five (5) days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
19.5 If the Force Majeure Event prevents, hinders, or delays the Affected Party’s performance of its obligations for a continuous period of more than eight (8) weeks, the party not affected by the Force Majeure Event may terminate this Contract by giving two (2) weeks’ written notice to the Affected Party.
19.1 Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (“Force Majeure Event”).
19.2 Provided it has complied with clause 19.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Contract by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
19.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
19.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than five (5) days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
19.5 If the Force Majeure Event prevents, hinders, or delays the Affected Party’s performance of its obligations for a continuous period of more than eight (8) weeks, the party not affected by the Force Majeure Event may terminate this Contract by giving two (2) weeks’ written notice to the Affected Party.
20. GENERAL
20.1 Assignment and other dealings
(a) 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.
(b) 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.
20.2 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) 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
(ii) sent by email to the address specified in the Order.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside the usual business hours in the place of receipt, when the usual business hours resume.
(c) This clause 20.2 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.
20.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this 20.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
20.4 Waiver.
(a) Except as set out in 2.2, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
20.5 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.
20.6 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on 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 misstatement based on any statement in the Contract. Nothing in this clause 20.6 shall limit or exclude any liability for fraud.
20.7 Third party rights. Unless it states expressly otherwise, the Contract does not give rise to any rights for a third party 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.
20.8 Variation. 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).
20.9 Language. The Contract is drafted in the English language. If the Contract is translated into any other language, the English language version shall prevail.
20.10 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. The application of the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods is expressly excluded.
20.11 Jurisdiction. Each party irrevocably agrees that the courts of Cyprus 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.
20.1 Assignment and other dealings
(a) 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.
(b) 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.
20.2 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) 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
(ii) sent by email to the address specified in the Order.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside the usual business hours in the place of receipt, when the usual business hours resume.
(c) This clause 20.2 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.
20.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this 20.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
20.4 Waiver.
(a) Except as set out in 2.2, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
20.5 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.
20.6 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on 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 misstatement based on any statement in the Contract. Nothing in this clause 20.6 shall limit or exclude any liability for fraud.
20.7 Third party rights. Unless it states expressly otherwise, the Contract does not give rise to any rights for a third party 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.
20.8 Variation. 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).
20.9 Language. The Contract is drafted in the English language. If the Contract is translated into any other language, the English language version shall prevail.
20.10 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. The application of the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods is expressly excluded.
20.11 Jurisdiction. Each party irrevocably agrees that the courts of Cyprus 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.
END OF THE CONDITIONS
Schedule 1 (Acceptance Certificate)
Acceptance Certificate Number _____
to the Sale of Goods and Services Agreement dated _______________, 2023
This Acceptance Certificate # ___ (hereinafter “the Acceptance Certificate”) to the Sale of Goods and Services Agreement dated ______________, 2023(hereinafter referred to as “the Contract”) is provided on ___________, 2023 (the “Acceptance Date”) by FRANKLIN HODGE INDUSTRIES LIMITED (company registration number 05005341), address: 90 Lea Ford Road, Birmingham, England, B33 9TX, hereinafter referred to as the “Customer” to ABAGY LIMITED, (company registration number HE 401087, address: 6, Vasili Vryonidi, GALA COURT CHAMBERS, 5th floor, office 503, 3095 Limassol, Cyprus), hereinafter referred to as the “Supplier”.
In accordance with the Contract, by this Acceptance Certificate the parties acknowledge and confirm as follows:
1. The Supplier duly carried out all its obligations regarding the supply of the Goods and Services to the Customer in accordance with the terms of the Contract and the relevant Schedule.
2. Acceptance Tests carried out by the Supplier on _________________________ confirm that the Goods comply with the terms of the Contract.
3. The Customer has no claims against the Supplier regarding the quantity and quality of the Goods supplied. [The following outstanding minor defects in the Goods shall be rectified within a reasonable time by the Supplier to the satisfaction of the Customer at its expense due to _____________(DATE):
______________________________________________________________________.]
4. The Customer has no claims against the Supplier regarding the extent, terms and quality of the delivery of the Services rendered.
5. The Customer duly paid the total amount due and payable under the Contract for the Goods by means of transfer of the relevant funds to the Supplier’s operating/nominated account.
SIGNED BY the _________________________, ___________________, on ______________”, 2023, duly authorised for and on behalf of the Customer.
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