1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.7.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Data in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Data from the Supplier.
Data: the data arising from the Project as set out in the Project Data Specification.
Data Licensing Fee: the fee to be paid by the Customer to the Supplier in consideration for the supply of Data during the Data Period.
Data Period: the period of time as detailed in the Project Data Specification during which Data shall be provided to the Customer by the Supplier.
Delivery Location: has the meaning set out in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 16.1(a).
Goods: the goods (or any part of them) and related services set out in the Quotation and Order Acknowledgement.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, data marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer’s order for the supply of Goods and/or Data, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be.
Order Acknowledgement (OA): The Suppliers written confirmation that details in the purchase order received from the Customer are correct or show those details that are revised or amended and what is accepted by the Supplier.
Project: the monitoring application for which the Customer intends to use the Goods.
Project Data Specification: any description or specification for the Data provided in writing by the Supplier to the Customer.
Quotation: Any document or email communication stating the Goods or Project Data Specification that are potentially to be provided by the Supplier.
Supplier: SENCEIVE LTD registered in England and Wales with company number 05608752.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Data in accordance with these Conditions.
2.2 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).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Data contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Data and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue or as specified in the quotation
2.7 All of these Conditions shall apply to the supply of both Goods and Data except where application to one or the other is specified.
3.1 The Goods are described in the Goods Specification or;
3.2 To The extent that the Goods are to be manufactured and supplied in accordance with the Suppliers Quotation or Proposal document, these will, unless otherwise agreed in writing, be deemed to be the Suppliers agreed Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
4. Delivery of Goods
4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that 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.
4.5 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to accept or take delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 6th Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 15 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, 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.
4.8 The Customer shall not be entitled to reject all the Goods if the Supplier delivers up to and including 5 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
4.9 The Supplier may deliver the Goods by instalments, and be paid in accordance with the terms and conditions agreed in writing by the Supplier through the Order Acknowledgement. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Quality of Goods
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
(a) conform in all material respect with their description and any applicable Goods Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for the purpose held out by the Supplier.
5.2 In the case of possible defects the following procedure shall be strictly adhered to;
(a) The Customer shall alert the Supplier in writing or by phone in a timely manner;
(b) The Supplier will carry out any remote analysis or diagnostic to determine if there is a problem with the Goods and whether it can be solved remotely.
(c) If the problem cannot be solved remotely, the Supplier will at its absolute discretion make one of the following arrangements:
(i) make arrangements for the Goods to be returned to the Supplier and replacement Goods to be sent to the Customer within an agreed replacement timeframe;
(ii) make arrangements for the Goods to be returned to the Supplier for repair and return within an agreed timeframe; or
(iii) if the Goods are not required by the Customer, give instructions for the Goods to be returned to the Supplier or disposed of and a credit for the value of the Goods to be issued to the Customer.
(d) The Customer shall send back the goods to the Supplier to the agreed Supplier address.
(e) If requested by the Customer, the Supplier shall within 15 working days (or as separately agreed) send a report to the Customer on cause and responsibility of the defect.
(f) If the Goods are within the Warranty Period, and it can be reasonable shown that the defect arises from a fault of the Supplier, then the Supplier shall not make any charge for the replacement Goods.
(g) If the defect in the Goods arises outside of the Warranty Period or can be reasonably shown by the Supplier that the Goods have become faulty through no fault of the Supplier, then the Supplier reserves the right to charge the Customer for the replacement cost of the Goods.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s reasonable oral or written instructions as to the storage, installation, commissioning, use, decommissioning or maintenance of the Goods or (if there are none) good trade practice;
(d) the Customer seeks to open the enclosures in which the electronic components of the Goods are contained;
(e) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
(f) the Customer alters or repairs such Goods without the written consent of the Supplier;
(g) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(h) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
(i) the Customer changes the use of the Goods to deploy them on a different project without confirmation from the Supplier that the new usage is compatible with the specification of the Goods;
(j) the Customer transfers ownership of the Goods to another party, without the express consent of the Supplier to the transfer of the warranty.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The Supplier may, as a gesture of good faith, supply replacement Goods before the faulty Goods have been returned to the Supplier. If the faulty Goods are not returned to the Supplier within one month of the supply of the replacement (or as otherwise agreed by the Supplier) then the Supplier reserves the right to charge the Customer for the replacement Goods.
5.6 These Terms and Conditions of Sale shall apply to any repaired or replacement Goods supplied by the Supplier in accordance with this clause 5, except that the warranty period for replacement Goods or repaired Goods shall be 6 months from delivery of the repaired or replacement Goods or the expiry of the original warranty, whichever is later.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery or if delivery is handled by the Customer the risk is passed at point of dispatch.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l); and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time;
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l), or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Supply of Data and System Configuration
7.1 The Supplier shall provide the Data to the Customer in accordance with the Project Data Specification for the Data Period. The Data Period may be extended subject to agreement on the terms of such an extension between the Supplier and the Customer and the payment by the Customer of a further Data Licensing Fee to the Supplier. The Supplier reserves the right to withhold the provision of Data to the Customer, if any Data Licensing Fees are not paid in accordance with the provisions contained within the Project Data Specification or Quotation or any subsequent agreement between the Supplier and Customer.
7.2 The Supplier warrants to the Customer that it will use reasonable care and skill in order to provide the Data to the Customer.
7.3 The Customer acknowledges that in undertaking to provide the Data, the Supplier shall in no way be liable for:
(a) any physical installation of the Goods that are necessary to enable a supply of Data from the Project;
(b) issues pertaining to the ability or otherwise of the Supplier to provide the Data to the Customer arising from an incomplete or incorrect installation of the Goods by the Customer at the Project site;
(c) any opinion, recommendation, forecast, decision or action taken (or not taken) by the Customer as a result of the use of the Data arising from the provision of the Data by the Supplier.
7.4. The Customer undertakes to engage with the Supplier in respect of the use of the Goods and the associated Project Data Specification within any Project which are different from those agreed when the Goods were first supplied. Failure to comply with the provisions of this clause 7.4 may result in the Supplier withholding the provision of Data to the Customer and invalidate any warranties or guarantees provided by the Supplier in respect for the Goods.
7.5 If the Customer transfers ownership of the Goods to a third party, then the Supplier will not be obliged to provide Data to such third party (or its nominee) unless and until such third party enters into a contract with the Supplier for the provision of Data.
8. Export controls and product approvals
8.1 Many of the Goods supplied by the Supplier to the Customer are subject to export controls and the Supplier will use reasonable endeavours to obtain the relevant export licence for the country of destination to which the Goods are to be shipped or ultimately used. To enable the Supplier to fulfil the obligations detailed in this clause 8.1, the Customer undertakes to provide the Supplier with all information that the Supplier may reasonably require to secure an export licence, including but not limited to written undertakings as to the usage, end customer and end destination of the Goods.
8.2 Many of the Goods supplied by the Supplier are subject to product approvals imposed by technical authorities in the country of sale or operation of the Goods and the Supplier will use reasonable endeavours to obtain relevant product approvals for such Goods. To enable the Supplier to fulfil the obligations detailed in this clause 8.2, the Customer undertakes to provide the Supplier with all information that the Supplier may need to secure product approvals, including the usage and end destination of the Goods.
8.3 The Customer undertakes not to re-export the Goods without the express permission of the Supplier. Such permission will not be unreasonably withheld, provided any re-export request does not breach the terms of either the export licence and/or product approvals associated with the Goods.
9. Customer’s obligations
9.1 The Customer shall:
(a) ensure that the terms of the Order and (if submitted by the Customer), the Goods Specification and Project Data Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Project Data Specification and any subsequent supply of Data for the Data Period;
(c) provide the Supplier with such information and materials in respect of the Project as the Supplier may reasonably require to fulfil the Project Data Specification, and ensure that such information is accurate in all material respects;
(d) obtain and maintain all necessary licences, permissions and consents which may be required for the Project before the date on which the Supplier shall be required to supply the Data; and
(e) indemnify the Supplier against any action and resultant financial penalties which may be taken against the Supplier if the Goods are used, operated or otherwise deployed in contravention of product approvals, export licences, or any other regulations applicable in the country or state of operation, and which may be advised by the Supplier.
9.2 If the Supplier’s performance of any of its obligations in respect of the Data is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend the provision of the Data 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 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 or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 9.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
10. Charges and payment
10.1 The price for Goods shall be the price set out in the Quotation. The price of the Goods is inclusive of the costs of primary packaging. Insurance, transport, special export packaging, dangerous goods packaging, export documentation or other delivery-related costs are to be agreed between the Supplier and the Customer and specified in the Supplier Quotation.
10.2 The charges for any onsite support or training either before during or after installation shall be agreed in the Quotation. If not specifically quoted then such charges will be on a standard time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier’s standard daily fee rates; and
(b) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Project including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of data provided by third parties and required by the Supplier for the supply of the Data, and for the cost of any materials.
10.3 If the Contract is for the rental of the Goods:
(a) the Goods remain the property of the Supplier throughout the rental period, or until a separate agreement is reached to purchase the Goods and the Customer shall be responsible for ensuring that the Goods are kept in a serviceable condition throughout the rental period;
(b) the Customer shall ensure that purchase order cover is provided for the duration of the expected rental period and also for possible extensions of the rental period agreed between the Customer and the Supplier according to the rates set out in the Quotation;
(c) at the end of the rental period, the Customer will at their own cost return the Goods to the Supplier using packaging and means of transport suitable to ensure that the Goods are not damaged;
(d) the rental period ends when the Goods have been received by the Supplier;
(e) when the Goods are received by the Supplier they will be checked to ensure that they are in a in a serviceable condition. If any of the Goods are found to be damaged beyond reasonable wear and tear, then the Customer will be liable for the cost of replacing the damaged Goods at the rates in the original Quotation.
10.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after receipt of the Customer purchase order or purchase order reference number or in accordance with invoicing arrangements specified in the Quotation and subsequent Order Acknowledgement. In respect of Data, unless otherwise agreed, the Supplier shall invoice the Customer in advance as appropriate to the duration of the Project.
10.5 The Customer shall pay each invoice submitted by the Supplier:
(a) As specified in the quotation
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) time for payment shall be of the essence of the Contract.
10.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Data or Goods at the same time as payment is due for the supply of the Data or Goods.
10.7 Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current HSBC base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
10.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11. Intellectual property rights
11.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and the Data shall be owned by the Supplier.
11.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Goods or the Data, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its data which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 12 shall survive termination of the Contract.
13. Limitation of liability
13.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
13.2 Subject to clause 13.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract ; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed sums paid by the Customer to the Supplier in accordance with the provisions of Clause 10 of this agreement up to the date of any such claim.
13.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.4 This clause 13 shall survive termination of the Contract.
14.1 Without limiting its other rights or remedies, each 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 its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause
14.1(b) to clause 14.1(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
14.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract
(a) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
14.3 Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Data or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if:
(a) the Customer fails to make pay any amount due under this Contract on the due date for payment; or
(b) the Customer becomes subject to any of the events listed in clause 14.1(b) to clause 14.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15. Consequences of termination
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Data supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Goods and any other Supplier Materials 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;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
16.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility data or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Data and/or Goods for more than 8 weeks after the agreed start of supply, either Party shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the other Party.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 16.2 shall not apply to the data of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
16.3 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.5 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
16.6 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
16.7 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.
16.8 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.