1. Introductory Provisions
1.1. These Conditions are applicable to business transactions concluded between the Supplier and the Customer, including for the purchase or rental of Goods or the performance of Services from the date of their publication, where these Conditions supersede all the previous Terms and Conditions. Transactions concluded under any previous Terms and Conditions are governed by the previous Sales Terms and Conditions.
1.2. Purchase or rental of any Goods and/or Services is expressly conditioned on Customer’s assent to these Conditions. Any acceptance of Supplier’s offer is expressly limited to acceptance of these Conditions. Except as otherwise provided in a written instrument signed by the Supplier, (i) Supplier expressly objects to any additional or different terms proposed by Customer (including any Customer form or Customer’s terms of purchase); and (ii) no course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Conditions
1.3. In the event of any conflict, these Conditions shall take precedence over other documents included in the Contract.
2.1. In these Conditions, the following definitions apply:
“Affiliates” means as used with respect to a particular person, any other person that owns or controls, is owned or controlled by, or is under common ownership or control with, such particular person.
“Business Day” means a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
“Conditions” means these General Terms and Conditions.
“Contract” means the contract entered between the parties for the purchase or rental of Goods or the performance of Services (which may be formed by the Supplier’s acceptance of an order issued by Customer or by any other written instrument between the parties), of which these Conditions, Supplier’s final quotation, the agreed Goods Specification, Services Specifications, and Supplier’s order acknowledgement form an integral part. For greater certainty, any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions or illustrations of the Goods or Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of advertising and shall not form part of the Contract or otherwise bind the parties.
“Contract Price” means the agreed price stated in the Contract for the sale or rental of Goods and performance of Services, including adjustments (if any) in accordance with the Contract.
“Customer” means the person who purchases or rents Goods or Services from the Supplier.
“Customer Default” means Customer (i) breaches any material provision of the Contract, including, but not limited to, the provisions regarding payment, and does not cure (to the extent curable) such breach within 15 days (5 days with respect to the first three payment breaches and no notice period with respect to any further payment breach) of notice thereof by Supplier; (ii) otherwise uses the Goods or Services for any unlawful purpose or in any unlawful manner; or (ii) is subject to an Insolvency Event.
“Data” means the field data collected or otherwise generated by the Goods to be made accessible to the Customer as set out in the Project Data Specifications, which data shall include no personally identifiable information.
“Data Period” means the period of time during which Data shall be made accessible to the Customer by the Supplier as set out in the Project Data Specifications.
“Delivery Location” has the meaning set out in Section 4.2.
“Disclosing Party” has the meaning set out in Section 14.1
“Force Majeure Event” has the meaning given to it in Section 18.1(a).
“Goods” means the equipment, parts, materials, supplies and other goods Supplier has agreed to provide Customer under the Contract, which may include sensors and other monitoring devices.
“Goods Specifications” means description or specification for the Goods to be sold or rented provided in writing by the Supplier to the Customer.
“Insolvency Event” means as used with respect to a particular party, filing or initiating proceedings or proceedings filed or initiated against such party, relating to its liquidation, insolvency, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or other official) under any bankruptcy, insolvency or other similar law or makes an assignment for the benefit of its creditors or enters into an agreement for the composition, extension or readjustment of its obligation in connection with the foregoing.
“Intellectual Property Rights” means all intellectual property rights, including 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), 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.
“Project” means the project described in the Project Data Specification.
“Project Data Specifications” means any description or specification for the Data provided in writing by the Supplier to the Customer.
“Rental Period” means the period of time during which the Goods are rented to the Customer as set out in the Supplier’s final quotation, which, unless otherwise specified in such quotation, shall be deemed start on the date of delivery and end on the earlier of (i) the expiration of such period of time; (ii) title to the Goods passing to the Customer pursuant to a separate agreement; or (iii) Supplier receiving the returned Goods prior to the expiration of such period of time pursuant to the exercise of a Supplier’s right hereunder.
“Receiving Party” has the meaning set out in Section 14.1
“Representatives” means as used with respect to a particular person, officers, directors, employees, agents, attorneys, accountants, advisors and representatives of this person.
“Services” means the services to be performed by Supplier under the Contract, which may include commissioning, calibration, support and Data access services.
“Services Specifications” means any description or specification for the Services to be performed provided in writing by the Supplier to the Customer, including Project Data Specifications.
“Service Standard” has the meaning given to it in Section 8.1.
“Supplier” means the Senceive legal entity identified in the Supplier’s final quotation or order acknowledgement or, if no such entity is identified; (i) SENCEIVE CORP. registered in Delaware with company number 6388363 if the Customer’s registered address is located in North America; or (ii) SENCEIVE LTD registered in England and Wales with company number 05608752 if the Customer’s registered address is located anywhere else in the world.
“Warranty Period” means a period of 12 months from the date of delivery of the Goods or the performance of the Services, as applicable.
2.2. In these Conditions, the following rules of construction 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. 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
d. a reference to writing or written includes faxes and e-mails.
3.1. The Goods are described in the Goods Specifications;
3.2. The Supplier may at its discretion at any time and without notice to Customer amend the Goods Specifications or make any changes to the design and/or construction of the Goods that are (i) in the reasonable opinion of the Supplier, an improvement to such design and/or construction; or (ii) required by any applicable statutory or regulatory requirements or industry-recognized standards.
4. Delivery and Transport 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. Unless otherwise indicated in the Supplier’s final quotation, the Goods shall be delivered Ex Works (Incoterms 2020) and the “Delivery Location” of the Goods shall be Supplier’s facility in London, United Kingdom or any other location as Supplier notifies the Customer in writing.
4.3. Delivery of the Goods shall be completed once the Goods have been picked up 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 or any failure to deliver 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. If the Customer fails to accept or take possession 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 or arrange for the storing of the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6. 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 Contract Price of the Goods or charge the Customer for any shortfall below the Contract Price of the Goods.
4.7. 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.
4.8. 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.
4.9. In the event that Customer is required to transport or arrange for the transport of the Goods under this Contract (including to transport the Goods to their installation site or to return the Goods to the Supplier at the end of a Rental Period or in the application of a warranty hereunder), Customer shall (i) comply with all applicable laws and regulations, including with respect to the transport of dangerous goods; and (ii) ensure that the packaging of Goods shall be such as suggested in Supplier’s instructions and as required to prevent their damage or deterioration during transit to their final destination by land, sea or air as appropriate, taking into consideration, where appropriate, the remoteness of the Goods final destination and the absence of heavy handling facilities at all points in transit.
5. Title and risk
5.1. Unless otherwise indicated in the Supplier’s final quotation, the risk in the Goods shall pass to the Customer on completion of delivery.
5.2. Unless otherwise indicated in the Supplier’s final quotation, 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 purchase of the Goods; and
b. any other goods that the Supplier has supplied to the Customer in respect of which payment has become due.
5.3. Until title to the Goods has passed to the Customer (and if the Goods are rented by Customer, until the Goods have been returned to Supplier at the end of the Rental Period), 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 sell, assign, transfer, pledge, hypothecate, or otherwise dispose of or encumber any of the Goods;
d. ensure that the Goods are not incorporated, intermingled or united with other movable of immovable assets in such a way as to be no longer separable without deterioration or without excessive labour and cost;
e. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
f. not make any alterations to or otherwise modify the Goods without the prior written consent of the Supplier;
g. maintain the Goods in satisfactory condition and keep them insured against all risks for their full value on the Supplier’s behalf from the date of delivery;
h. notify the Supplier immediately if it becomes subject to any Insolvency Event; and
i. give the Supplier such information relating to the Goods as the Supplier may require from time to time;
6. Quality of Goods
6.1. The Supplier warrants that on delivery, and for the 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.
6.2. In the case of possible defects during the Warranty Period the following procedure shall be strictly adhered to and shall describe the Customer’s exclusive remedy;
a. The Customer shall promptly notify the Supplier in writing 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 current 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 in accordance with Section 4.9.
e. If requested by the Customer, the Supplier shall within 15 Business 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 defective for a reason described in Section 6.3 below, then the Supplier reserves the right to charge the Customer for the replacement or repair costs of the Goods.
6.3. Notwithstanding anything to the contrary in this Contract, the above warranty shall not apply if:
a. the Customer makes any further use of such Goods (including deploying the Goods on another project) after giving a notice in accordance with Section 6.2;
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;
c. the Customer opens or attempts to open the enclosures in which the electronic components of the Goods are contained;
d the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
e. the Customer alters or repairs or attempts to alter or repair such Goods without the written consent of the Supplier;
f. the defect arises as a result of willful damage or negligence of the Customer, or abnormal working conditions;
g. 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;
h. the Customer transfers ownership of the Goods to another party, without the express consent of the Supplier to the transfer of the warranty.
6.4. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier in accordance with this Section 6, 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 Period under which the repaired or replacement Goods were provided, whichever occurs last.
6.5. The Customer undertakes to engage with the Supplier in respect of the use of the Goods at any site or for any project other than the Project. Upon the Customer’s failure to comply with the provisions of this Section 6.5, Supplier may, at its discretion, (i) withhold access to Data from the Customer; and/or (ii) invalidate any warranties provided by the Supplier in respect for such Goods or related Services.
7. Performance of Services
7.1. Supplier shall perform the Services in accordance with the Service Specifications.
7.2. Supplier may, without further notice to Customer, subcontract any part of the Services with any Affiliates or unaffiliated subcontractors.
7.3. With respect to Data access Services:
a. the Supplier (through a third-party service provider) will host the Data on behalf of the Customer or, if provided in the Project Data Specifications, will provide a web environment to the Customer for the hosting of Data;
b. the Supplier will use commercially reasonable efforts to provide access to the Data to the Customer in accordance with the Project Data Specifications for the Data Period;
c. the Supplier reserves the right to withhold access to Data to the Customer during the Data Period, if any fees relating to Data access Services are not paid in accordance with the Contract;
d. the Supplier will not be obliged to provide access to the Data to any third party other than Customer (including if Customer transfers ownership of Goods to such third party) unless and until such third party enters into a contract with the Supplier for the Data access Services; and
e. as between the parties, the Customer shall retain all right, title and interest in the Data, provided, however that (i) Supplier shall retain all Intellectual Property Rights in databases, original compilations and other expressions of such Data; and (ii) Customer hereby grants to Supplier a non-exclusive, perpetual, irrevocable, worldwide, royalty free, transferable or sublicensable to Affiliates, to collect, use, copy, store, transmit, modify and create derivative works of the Data for the provision of the Services or for Supplier’s other internal business purposes, including the overall improvement of the Supplier’s Goods and Services.
8. Quality of Services
8.1. Supplier warrants that the Services shall (the “Service Standard”):
a. be performed in a good and workmanlike manner;
b. conform in all material respects to the Service Specifications; and
c. be free of defects in materials and workmanship for the Warranty Period.
8.2. In the case of a breach of the Service Standard during the Warranty Period, the following procedure shall be strictly adhered to and shall describe the Customer’s exclusive remedy;
a. The Customer shall promptly notify the Supplier in writing in a timely manner;
b. To the extent possible, the Supplier will re-perform the defective or non-conforming Services at no cost for the Customer;
c. If requested by the Customer, the Supplier shall within 15 Business days (or as separately agreed) send a report to the Customer on cause and responsibility of the breach of Service Standard.
d. If the defect or non-conformity in the Services can be reasonably shown by the Supplier to be resulting from an act or omission of the Customer, then the Supplier reserves the right to charge the Customer for the re-performance Costs.
8.3. Notwithstanding anything to the contrary in this Contract, the above warranty shall not apply to, and the Supplier shall in no event be liable for:
a. Recommendations, suggestions or advice from Supplier to Customer;
b. any opinion, recommendation, forecast, decision or action taken (or not taken) by the Customer as a result of the access or use of the Data (for greater certainty, Supplier makes no warranty with respect to the completeness and accuracy of the Data, which is made accessible to Customer on an “AS IS, WHERE-IS, AND WITH ALL FAULTS” basis);
c. issues related to physical installation of the Goods that are necessary to enable the access to Data;
d. issues pertaining to the ability or otherwise of the Supplier to make the Data accessible to the Customer arising from an incomplete or incorrect installation of the Goods by the Customer at the Project site or from any software, hardware, firmware, data, or technology in possession or control of the Customer;
e. any loss of Data or storage media in the possession or control of the Customer; and
f. Failure of Customer to comply with Supplier’s reasonable oral or written instructions regarding the Services.
9. Rental-Specific Provisions
9.1. If the Contract is for the rental of the Goods:
a. the Goods remain the property of the Supplier throughout the Rental Period.
b. For the entire duration of the Rental Period, Customer shall strictly comply with its obligations under Section 5.3;
c. 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;
d. at the end of the Rental Period, the Customer will at their own cost return the Goods to the Supplier in accordance with Section 4.9;
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. Charges and Payment
10.1. Customer shall purchase or rent the Goods and, if applicable, shall pay for the Services provided, from Supplier at the Contract Price indicated in the quotation. Prices are subject to change without prior notice and Supplier shall thereafter notify Customer of any price increases. In the event of a price increase, Customer may cancel any undelivered portion of any order for the purchase of Goods by written notice to Supplier, provided such notice is received by Provider not more than 5 Business Days after Customer’s receipt of Provider’s notice of price increase. Upon cancellation, Customer shall pay Supplier: (i) the price for all Goods which have been completed or are in the process of completion, (ii) components or goods secured by Supplier from outside sources for the performance of the Contract, as applicable, and (iii) special tooling and equipment procured for the performance of the Contract, as applicable.
10.2. Unless otherwise provided in the Supplier’s final quotation, all Contract Prices are inclusive of the costs of primary packaging and exclusive of insurance, transport, special export packaging, dangerous goods packaging, export documentation, other delivery-related costs and of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Without limiting the generality of the foregoing, all Contract Prices 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 applicable Goods or Services at the same time as payment is due for such Goods or Services.
10.3. Where Contract Prices are not expressly established for any Services (including Services relating to any onsite support or training either before during or after installation of Goods), then (i) the price of such Services shall be on a standard time and materials basis calculated in accordance with the Supplier’s standard daily fee rates; and (ii) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with such Services 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 granting access to Data, and for the cost of any materials.10.4. Unless otherwise provided in the Supplier’s final quotation, the Supplier shall invoice Customer (i) in respect of Goods, 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 Supplier’s final quotation or subsequent order acknowledgement; (ii) in respect of Data access Services, in advance as appropriate to the Data Period; and (iii) in respect of other Services, on or at any time after such Services are performed.
10.5. The Customer shall pay each invoice submitted by the Supplier:
a. Within the term specified in Supplier’s final quotation or, if not expressly provided therein, 30 days following the date of the invoice;
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. 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, the Supplier shall have the right to charge interest on the overdue amount at the lesser of the rate of 4 per cent per annum above the then current HSBC base rate or the highest rate permissible under applicable law, calculated daily and compounding quarterly from such due date. Customer shall reimburse Supplier for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs.
10.7. 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 under the Contract, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer
11. Customer’s Obligations
11.1. In addition to its other obligations hereunder, the Customer shall:
a. ensure that the terms of the order and (if submitted by the Customer), the Goods Specification and Service Specifications are complete and accurate;
b. co-operate with the Supplier in all matters relating to the access to 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 regarding the Project Data Specifications, and ensure that such information is accurate in all material respects;
d. obtain and maintain all necessary licenses, certificates, permits, permissions and other authorizations or consents which may be required for the Project before the beginning of the Data Period; and
11.2. In the event of any Customer Default:
a. the Supplier shall without limiting its other rights or remedies under the Contract have the right to suspend access to Data or all further deliveries of Goods or performance of Services under the Contract or any other contract between the Customer and the Supplier until the Customer remedies the Customer Default (to the extent remediable), 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; and
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 which is prevented or delayed by a Customer Default; and
c. the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier, its Affiliates and their Representatives arising directly or indirectly from such Customer Default.
12. Export Controls and Goods Approvals
12.1. The Goods supplied by the Supplier to the Customer may be subject to trade control laws and regulations 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 Section 12.1, 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.
12.2. Customer shall not trans-ship, re-export, divert or direct Goods other than in and to the ultimate country of destination declared by Customer and specified as the country of ultimate destination. 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.
12.3. Supplier’s obligations herein are conditioned upon Customer’s compliance with all applicable trade control laws and regulations. Customer represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN and including with respect to the export of Data for the purpose hereof) with respect to Goods and Data supplied hereunder, and shall provide evidence of compliance with the foregoing as Supplier may reasonably request from time to time. Customer agrees to indemnify and hold Supplier, its Affiliates and their Representatives harmless from any and all costs, liabilities, penalties, sanctions and fines related to non-compliance with applicable trade control laws and regulations.
12.4. 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 Section 12.4, 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.
13. Intellectual Property Rights
13.1. Notwithstanding anything to the contrary in the Contract, Supplier and its licensors shall retain all right, know-how, title and interest, including all Intellectual Property Rights in and to any underlying technology contained in or embodied in the Goods or Services, their look and feel, and any modification or derivative work created by or for Supplier with respect thereto and nothing in this Contract shall operate to assign or transfer any Intellectual Property Rights from the Supplier to the Customer.
13.2. Customer shall refrain from registering or applying for registration of any Intellectual Property Right relating to the Goods or Services which would have the effect of directly or indirectly (i) restricting Supplier's ability to market and sell the Goods and/or Services; or (ii) limiting any third party’s (such as Supplier’s other customers’) use of the Goods and Services. Without limiting the generality of the foregoing, Customer shall not register or apply for registration of a method patent (also known as a “process” patent) in which one or more of the claims relate to the use of the Goods and/or Services or similar goods and services.
13.3. Customer must not rebrand any Goods or container, document or object associated with same, or otherwise alter, remove, or tamper with any trademark or other marking appearing on any Good or container, document or object associated with same, unless prior written approval is given by Supplier (which approval can be given or denied by Supplier at its discretion). Without limiting the foregoing, Customer must not label or relabel Goods or a container, document or object associated with same or include any marking that could lead anyone to believe that Customer or any person other than Supplier is the manufacturer of the Goods.
13.4. Customer may, at its sole discretion, provide its input regarding the Goods and/or Services, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Goods and/or Services, and Supplier shall be entitled to use such input for any purpose without notice, restriction or remuneration of any kind to the Customer, its Affiliates or Representatives.
14.1.A party (“Receiving Party”) shall keep in strict confidence all information which is marked as “confidential” or should be reasonably understood by such Receiving Party to be confidential in nature that has been disclosed or made accessible to to the Receiving Party by the other party (“Disclosing Party”), its Affiliates or their Representatives concerning the Disclosing Party’s or its Affiliates’ business. The Receiving Party shall restrict disclosure of such confidential information to such of its Representatives that need to know it for the purpose of Contract and shall ensure that such Representatives are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Section 14.1 shall survive (i) with respect to confidential information that constitutes a trade secret, for as long as such confidential information constitutes a trade secret under applicable law; and (ii) with respect to all other confidential information, for a period of 5 years after the expiration or termination of this Contract;
15. Indemnification; Liability and Warranties
15.1 The Customer shall indemnify and hold harmless the Supplier, its Affiliates and their Representatives against all losses, damages, expenses, suits andjudgments arising from injury to, or death of, any persons, or from damage to property in connection with or arising from this Contract or the use, operation, storage or transportation of the Goods or Services subject to the Contract. The Customer is required to purchase and maintain adequate insurance in respect of any such third party claims.
15.2 In no case shall the Supplier be liable for any special, incidental or consequential damages based upon breach of warranty, breach of contract, negligence, direct liability or any other legal theory. Excluded damages include loss of profit, loss of savings, revenue or other commercial or economics losses, loss of use of the Goods or Data or downtime.
15.3 the Supplier’s total liability to the Customer in respect of any and all 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 under this Contract up to the date of any such claim.
15.4 Notwithstanding the foregoing, nothing in these Conditions shall limit or exclude the Supplier’s liability for:
a. death or personal injury caused by its gross negligence or willful misconduct, or the gross negligence or willful misconduct of its Representatives;
b. fraud or fraudulent misrepresentation;
15.5 THE WARRANTIES SET FORTH IN SECTIONS 6.2 AND 8.2 OF THIS CONTRACT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE).
15.6 This Section 15 shall survive expiration or termination of the Contract for an indefinite period.
16. Expiration and Termination
16.1. This Contract shall expire upon the date that all obligations of the parties hereto with respect to this Contract have been fully completed and satisfied.
16.2. Without limiting its other rights or remedies under the Contract, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier (i) if the Supplier is subject to an Insolvency Event; or (ii) if a Force Majeure Event prevents the Supplier from providing any Goods or Data access Services for more than 8 consecutive weeks.
16.3. Without limiting its other rights or remedies under the Contract, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer in the event of a Customer Default.
17. Consequences of Expiration and Termination
17.1. On expiration and 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 rentals and Services (including Data access Services) for which no invoice has yet been issued, the Supplier shall issue an invoice, which shall be payable by the Customer immediately on receipt;
b. the Customer shall return all rented Goods and other Goods which have not been fully paid for in accordance with Section 4.9 and, if the Customer fails to do so, then the Customer expressly allows the Supplier to enter the Customer’s premises or any third party location where the Goods are located in order to recover them;
c. the Supplier shall provide Customer with a reasonable opportunity to download or otherwise import the Data in machine-readable form, after which the Supplier shall have no further obligation to maintain or provide access to Data under the Contract and may, at its discretion, irrevocably delete Data.
d. the accrued rights and remedies of the parties 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
e. Sections which expressly or by implication have effect after termination (including Section 13 (Intellectual Property Rights), 14 (Confidentiality), 15 (Indemnification and Liability)) shall continue in full force and effect.
18.1. 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, pandemic, 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.
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 or by email at an email address expressly identified in the Contract.
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 or email, on the next Business Day after transmission.
c. This Section 18.2 shall not apply to the data of any proceedings or other documents in any legal action. For the purposes of this Section, “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 email.
18.3. 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.
18.4. Severability: 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 or, to the extent not possible, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
18.5. 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.
18.6. Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
18.7. 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.
18.8. 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.