Terms & Conditions
Brick Kiln Composites Ltd
STANDARD TERMS AND CONDITIONS OF SUPPLY OF GOODS OR SERVICES
1. Interpretation
1.1 In these Conditions:
“Supplier” means Brick Kiln Composites Ltd.
“Customer” means the person whose order is accepted by the Supplier.
“Deliverables” means all documents, products and materials developed by the Supplier specifically for the Customer in the provision of services under these Conditions and as set out in the Statement of Work.
“Conditions” means the standard terms and conditions of sale set out in this document.
“Contract” means any contract between the Supplier and the Customer for the purchase and sale of the Services and/or Deliverables incorporating this Conditions.
“Data Controller” shall have the meaning set out in the GDPR, as amended from time to time. “Data Processor” shall have the meaning set out in the GDPR, as amended from time to time.
“Data Protection Legislation” shall mean the Data Protection Act 2018 and the GDPR.
“Data Subject” shall have the meaning set out in the GDPR, as amended from time to time.
“Equipment” shall mean any equipment, hardware, software, or other material.
“GDPR” means the General Data Protection Regulation ((EU) 2016/679) retained in the UK under the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419) and known as the UK General Data Protection Regulation (GDPR) as may be amended from time to time.
“Moulds” refer to machined and finished to drawing products which are manufactured from carbon fibre or metal which has been either free issued from the Customer to the Seller or manufactured by the Seller.
“Party” means either the Supplier or the Customer. Parties shall mean both of them.
“Patterns” refer to machined and finished to drawing products which are manufactured from epoxy tooling board which has been either free issued from the Customer to the Seller or manufactured by the Seller.
“Personal Data” shall have the meaning set out in the GDPR, as amended from time to time.
“Personal Data Breach” shall have the meaning set out in the GDPR, as amended from time to time. “Processing” shall have the meaning set out in the GDPR, as amended from time to time.
“Third Party Processor” shall have the meaning set out in the GDPR, as amended from time to time.
“Services” means the services to be provided under these Conditions as detailed in the Statement of Work. Services and any references herein to ‘Services’ may include the provision of Deliverables where detailed in the relevant Statement of Work.
“Statement of Work” means the plan describing the Services and setting out the timetable for the Services as agreed between the Supplier and Customer.
1.2 Any reference in these Conditions to any provision of a statute or statutory instrument shall be construed as a reference to that provision as amended, re-enacted, or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. The Services
2.1 The Supplier shall provide the Services to the Customer in accordance with these Conditions. By placing an order for the Services, the Customer shall be deemed to have accepted the Conditions which shall govern the terms and conditions for the supply of the Services to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions shall be binding unless agreed in writing by the authorised representatives of the Customer and the Supplier.
2.3 The Supplier’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Supplier in writing. In agreeing to these Conditions, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representation which is not so confirmed.
2.4 Nothing in this Condition 2 shall exclude any liability of the Supplier for representation made fraudulently or any misrepresentations as to a fundamental matter made by the Supplier or Customer.
3. Supplier’s Responsibilities
3.1 The Supplier shall provide the Services and deliver the Deliverables (if applicable) to the Customer, in accordance with the Statement of Work in all material respects.
3.2 The Supplier shall use reasonable endeavours to observe all health and safety rules and regulations and any other reasonable security measures that have been communicated to it in writing provided that it shall not be liable under these Conditions if, as a result of such observation, it is in breach of any of its obligations under the Statement of Work.
4. Formation of Contract and Statement of Work
4.1 A quotation by the Supplier does not constitute an offer and the Supplier reserves the right to withdraw or revise any quotation at any time prior to the Supplier’s acceptance of the Customer’s order.
4.2 The Supplier reserves the right to make any changes to the specification of the Services which are required to conform with any applicable safety or other statutory requirements, or where the Deliverables are to be supplied to the Supplier’s specification, which do not materially affect the quality or performance of the Deliverables.
4.3 No order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier and on terms that the Customer shall indemnify the Supplier in full against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.
4.4 The Customer shall indemnify and keep indemnified the Supplier fully on demand against any and all losses, damages, costs and expenses incurred by or awarded against the Supplier as a result of the carrying out of any of the Services in accordance with the requirements or specifications of the Customer involving an infringement or alleged infringement of any rights of any third party.
4.5 Any typographical, clerical, or other error or omission in any documentation issued by the Supplier may be corrected by the Supplier without liability on the part of the Supplier.
5. Price
5.1 The price of the Services and / or Deliverables shall be the Supplier’s quoted price or, where no price has been quoted, the Supplier will come to an agreement with the Customer on an acceptable price.
5.2 The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Services and / or Deliverables to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier including (without limitation) alterations in taxation, increases in the cost of labour, materials or other costs of manufacture, any change of delivery dates, quantities or specifications of the Deliverables which are requested by the Customer, or any delay caused by any instructions of the Customer, or failure of the Customer to give the Supplier adequate information or instructions.
5.3 The price is exclusive of Value Added Tax and all other taxes and duties (apart from corporation taxes referable to income or capital gains of the Supplier), which shall be payable by the Customer.
5.4 Unless agreed otherwise, the Seller will quote with terms EXW (Ex-works) therefore the Customer shall be responsible for all international and domestic duties, taxes and shipping, with no deduction for any service or any other charges or fees by any bank or any other entity.
6. Payment
6.1 The Customer shall pay the price of the Services and/or Deliverables in full within 30 days of the date of the Supplier’s invoice, notwithstanding the Services may not have commenced. The Customer shall not be entitled to make any deduction from such payment or exercise any right of set-off or contribution howsoever arising. The time of payment of the price shall be of the essence.
6.2 If the Customer fails to make any payment on the due date, then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall (at its option) be entitled to:
6.2.1 Treat the contract between the Supplier and the Customer as repudiated by the Customer and suspend any further deliveries to the Customer, claim damages from the Customer and charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 8 per cent per annum above Bank of England base rate from time to time, until payment in full is made; or
6.2.2 Affirm the contract, claim damages from the Customer and charge the Customer interest (in accordance with Condition 6.2.1).
7. Customer’s Obligations
7.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier to provide the Services;
(c) inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Customer’s premises;
(d) ensure that any Equipment supplied by the Customer in connection with the Services is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant regulatory and legislative standards or requirements as required;
(e) obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services, the installation of the Supplier’s equipment (if applicable) and the use of the Customer’s equipment in relation to the Supplier’s equipment insofar as such licences, consents and legislation relate to the Customer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
(f) keep, maintain and insure the Supplier’s equipment (if applicable) in good condition and shall not dispose of or use the Supplier’s equipment other than in accordance with the Supplier’s written instructions or authorisation;
(g) comply with any additional responsibilities as set out in the relevant Statement of Work.
7.2 If the Supplier’s performance of its obligations under these Conditions are prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay.
7.3 The Customer shall be liable to pay to the Supplier, on demand, all reasonable costs, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under a Contract, subject to the Supplier confirming such costs, charges and losses to the Customer in writing.
7.4 The Customer shall not, without the prior written consent of the Supplier, at any time from the commencement of the Contract to the expiry of twelve months after the completion of the Services, solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the Supplier in the provision of the Services.
8. Change Control
8.1 If a Party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other Party in writing (Change Request).
8.2 If the Supplier originates a Change Request, it shall provide, with the Change Request, written details of the impact which the proposed change will have on:
(a) the Services;
(b) the Supplier’s existing charges;
(c) the timetable of the Services; and
(d) any of the Conditions and any relevant Statement of Work.
8.3 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
8.4 If the Customer originates a Change Request, the Supplier shall, as soon as reasonably practicable after receiving the Change Request, provide a written estimate to the Customer setting out:
(a) the likely time required to implement the proposed change;
(b) details of the impact which the proposed change will have on:
(i) the Services;
(ii) the Supplier’s existing charges;
(iii) the timetable of the Services; and
(iv) any of the Conditions and any relevant Statement of Work.
8.5 Subject to Condition 8.3, unless both Parties consent to a Change Request, there shall be no change to the Services and any other terms of these Conditions and any other relevant Statements of Work.
8.6 If both Parties consent to a Change Request, it shall be signed by the authorised representatives of both Parties, upon which the Change Request becomes a Change Order.
8.7 The Supplier may charge for the time it spends on dealing with Change Requests originating from the Customer on a time and materials basis.
9. Deliverables
9.1 Delivery of the Deliverables shall be at the Supplier’s premises at any time after the Supplier has notified the Customer that the Deliverables are ready for collection, unless otherwise agreed by the Supplier in writing.
9.2 Any dates quoted for delivery of the Deliverables are approximate only and the Supplier shall use its reasonable endeavours to deliver on the quoted dates.
9.3 Where delivery of the Deliverables is to be made by the Supplier in bulk, the Supplier reserves the right to deliver up to 5 per cent more or 5 per cent less than the quantity ordered and in such event the Customer shall pay for the actual quantity delivered.
9.4 Subject to Condition 9.3, if the Supplier is satisfied that the Deliverables have been short delivered, the Supplier shall at its option:
9.4.1 make up any short delivery by despatching to the Customer such Deliverables as the Supplier is satisfied were not delivered; or
9.4.2 allow the Customer credit in respect thereof.
The Supplier’s liability shall be limited to making up the delivery or allowing credit as above.
9.5 Where the Deliverables are to be delivered in instalments, each delivery shall constitute a separate contract.
9.6 If the Customer fails to take delivery of the Deliverables or fails to give the Supplier adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Supplier’s fault) then, without prejudice to any other right or remedy available to the Supplier, the Supplier may:
9.6.1 store the Deliverables until actual delivery and charge the Customer for the reasonable costs (including handling and insurance) of storage; or
9.6.2 sell the Deliverables at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under these Conditions or charge the Customer for any shortfall below the price under these Conditions.
10. Risk
The risk of loss and damage to the Deliverables shall pass to the Customer immediately upon delivery unless the Deliverables are to be collected by the Customer when the risk of loss and damage to the Deliverables shall pass to the Customer upon the Supplier notifying the Customer that the Deliverables are ready for collection.
11. Title
11.1 Notwithstanding delivery and the passing of risk in the Deliverables, the property in the Deliverables shall not pass to the Customer and shall remain in the Supplier until either such time as the Customer shall have paid to the Supplier the full price for all Deliverables sold by the Supplier to the Customer under any and all contracts between them or the Supplier shall have written to the Customer notifying the Customer that the property in the Deliverables has passed to the Customer.
11.2 Until such payment the Customer shall carefully store the Deliverables in such a way as to enable them to be identified as the property of the Supplier and keep them insured against all loss or damage howsoever caused at its own expense.
11.3 The Customer shall not attach the Deliverables to any real property without the prior written consent of the Supplier.
11.4 The Supplier reserves the immediate right of re-possession of any Deliverables to which the Supplier has retained title as aforesaid exercisable at any time after delivery or collection of the Deliverables and the Customer hereby grants an irrevocable right and licence to the Supplier’s servants and agents to enter upon all or any premises where the Deliverables are stored without prior notice for this purpose.
11.5 The Customer may in the ordinary course of its business:
11.5.1 process the Deliverables in such fashion as it may wish and/or incorporate them in or with any other product or products; and
11.5.2 sell the Deliverables to any third party as principal but not as agent for the Supplier.
11.6 Transfer of Title for Patterns and Moulds will transfer back to the Supplier as detailed in ‘22. Patterns and Moulds’
12. Confidentiality / Publicity
12.1 Any information supplied by the Supplier to the Customer in connection with the Deliverables hereunder or the Supplier’s business or the business of any associated company of the Supplier shall be treated as confidential information and shall not be disclosed to any third party or used by the Customer except in accordance with the terms of a Contract or with the Supplier’s express written agreement.
12.2 The Customer will not and will procure that no person that directly or indirectly supplies or is supplied by the Customer will, without first obtaining the written consent of the Supplier (which may be withheld in its absolute discretion), in any way whatsoever advertise or publish the fact that the Supplier has contracted to supply the Customer the Deliverables or otherwise publish any material using the Supplier of any associated company’s name, or the name and/or image of any car, driver, premises or employee of the Supplier or any associated company of the Supplier.
12.3 The Customer shall keep all confidential information secure and protected against theft, damages, loss or unauthorised access and shall return all such information to the Supplier at the Supplier’s request.
12.4 The Customer shall not use the trade name, logo, names, livery or other indicia belonging to the Supplier or any associated company of the Supplier or the image or likeness of any of the Supplier’s or any associated company of the Supplier products, drivers, personnel in any form whatsoever without the Supplier’s prior written agreement.
12.5 The Customer expressly acknowledges that breach of this Condition 12 may result in injury or loss to the Supplier which may be difficult to assess, and the Customer accordingly consents (to the extent permitted by law) to the entry or injunctive or other equitable relief against it to restrain such breach.
12.6 The Customer will not do or authorise any third person to do any act which would or might damage or be inconsistent with the trademarks used by the Supplier in relation to the Deliverables or to the goodwill associated therewith and, in particular, will not do or authorise the alteration, obliteration, covering up or incorporation of other marks (in whole or in part) on to the Deliverables. Any advertising, promotion and selling materials supplied by the Supplier to the Customer shall remain the property of the Supplier and the Customer shall not permit any other person to make use thereof. The Customer recognises the great value of the goodwill associated with the Supplier’s trademarks and acknowledges that the Supplier’s trademarks and all rights therein and goodwill pertaining thereto belong exclusively to the Supplier. The Customer further agrees that it is critical that such goodwill be protected and enhanced, and, toward this end, the Customer shall not during the term of these Conditions or thereafter:
(i) attack the title or any rights of the Supplier in or to the Supplier’s trademarks;
(ii) attack the validity of these Conditions;
(iii) do anything either by an act of omission or commission that might impair, violate or infringe the Supplier’s trademarks;
(iv) claim (adversely to the Supplier or anyone claiming rights through the Supplier) any right, title or interest in or to the Supplier’s trademarks;
(v) misuse or harm the Supplier’s trademarks or bring the Supplier’s trademarks into disrepute;
(vi) for its benefit, directly or indirectly, register or apply for registration of the Supplier’s trademarks or any mark that is, in the Supplier’s reasonable opinion, the same as or confusingly similar to any of the Supplier’s trademarks; and
(vi) for its benefit, directly or indirectly, register, maintain or apply for registration of a domain name that is, in the Supplier’s reasonable opinion, the same as, confusingly similar to or incorporates any of the Supplier’s trademarks. In no event may the Customer bid on or use any of the Supplier’s trademarks in search engine advertising or online advertising.
13. Liability
13.1 Subject to the terms of this Condition 13, the Supplier warrants that where the Deliverables comprises standard goods available from the Supplier’s current catalogue of goods offered for sale they will correspond with the Statement of Work at the time of delivery and will be free from defects in material and workmanship for a period of six months from the date of invoice or date of delivery, whichever is the first to expire.
13.2 The Supplier shall be under no liability in respect of any defect in the Deliverables:
13.2.1 arising from or attributable to any drawing, design or specification supplied by the Customer;
13.2.2 arising from fair wear and tear, neglect, failure to follow the Supplier’s instructions, misuse or improper alteration or repair of the Deliverables;
13.2.3 if the total price for the Deliverables has not been paid by the due date for payment; or
13.2.4 if the Customer fails to notify any claim in respect of any of the Deliverables which is based on a breach of the warranty in Condition 13.1 within 14 days after the discovery of the breach.
13.3 Where the Deliverables comprise a research and development project or amount to a feasibility programme the Supplier shall perform its obligations under the Contract in accordance with the standards and diligence of a professional entity familiar with the provision of similar to the Deliverables but the Customer accepts and acknowledges that due to the nature of such work the Supplier cannot provide any warranty or assurance that the Statement of Work or delivery timetables can be met.
13.4 The warranty in Condition 13.1 does not extend to parts, materials or equipment not manufactured by the Supplier, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee given by the manufacturer to the Supplier, and which the Supplier will, so far as possible, assign to the Customer upon the written request of the Customer.
13.5 Where any valid claim in respect of any of the Deliverables which is based on a breach of the warranty in Condition 13.1 is notified to the Supplier within the warranty period set out in Condition 13.1, as Customer’s sole remedy, the Supplier shall at its discretion be entitled to repair or replace the Deliverables (or the part in question) free of charge or, at the Supplier’s discretion, refund to the Customer the price of the Deliverables in question.
13.6 Except as expressly provided in these Conditions, all conditions, warranties, terms, and representations expressed or implied by statue, common law or otherwise in relation to the Services and Deliverables are hereby excluded.
13.7 Except as expressly provided in these Conditions, the Supplier shall be under no liability to the Customer for any loss, injury or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise), whether direct or indirectly, whether resulting from defective material faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Supplier, its employees or agents in connection with the Deliverables or otherwise in connection with these Conditions.
13.8 The Supplier’s prices are determined on the basis of the limits of liability set out in these Conditions. The Customer may by written notice to the Supplier request the Supplier to agree a higher limit of liability provided insurance cover can be obtained therefor. The Supplier shall affect insurance up to such limit and the Customer shall pay upon demand the amount of any and all premiums. The Customer shall disclose such information as the insurers shall require. In no case shall the Customer be entitled to recover from the Supplier more than the amount received by the Supplier from the insurers.
13.9 The Supplier’s maximum aggregate liability to the Customer in respect of any particular unit of the Deliverables (whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise) shall not exceed 125% of the price for that particular unit or those units, provided always that the Supplier’s maximum aggregate liability to the Customer under or in connection with these Conditions (whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise) shall in no circumstances exceed £1,500,000.
13.10 Nothing in this Condition 13 or otherwise in these Conditions shall exclude or in any way limit the Supplier’s liability to the Customer for:
- fraud;
- death or personal injury caused by the Supplier’s negligence (including negligence as defined in s.1 Unfair Contract Terms Act 1977);
- breach of terms regarding title implied by s.12 Sale of Goods Act 1979 and/or s.2 Supply of Goods and Services Act 1982; or
- any liability to the extent the same may not be excluded or limited as a matter of law.
14. Intellectual Property Rights
14.1 Each party shall retain sole ownership of all intellectual property rights, know-how and other related rights owned by it prior to commencement of the Contract or that is developed independently of the Contract including all development, improvements and modifications thereto made by either party under the Contract (“Background IP”).
14.2 All intellectual property rights, know-how and other related rights developed under the Contract other than the Background IP (“Foreground IP”) shall be the property of the Supplier save that the Customer is granted a worldwide, non-exclusive and non-assignable licence to use the Foreground IP for the purposes set out in the Statement of Work.
14.3 The Supplier shall have no liability to the Customer in the event of the Deliverables infringing or being alleged to infringe the rights of any third party.
14.4 The Customer will not do or authorise any third person to do any act which would or might damage or be inconsistent with the trademarks used by the Supplier in relation to the Deliverables or to the goodwill associated therewith and, in particular, will not do or authorise the alteration, obliteration, covering up or incorporation of other marks (in whole or in part) on to the Deliverables. All advertising, promotion and selling materials supplied by the Supplier to the Customer shall remain the property of the Supplier and the Customer shall not permit any other person to make use thereof.
15. Force Majeure
15.1 The Supplier shall not be liable to the Customer for any loss or damage which may be suffered by the Customer as a direct or indirect result of the supply of the Services and /or Deliverables by the Supplier being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Supplier’s reasonable control including (but not limited to) Act of God, war riot, strike, lock-out, trade dispute or labour disturbance, accident, break-down of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of the Deliverables or of raw materials therefor by the Supplier’s normal source of supply or the manufacture of the Deliverables by the Supplier’s normal means or the delivery of the Deliverables by the Supplier’s normal route or means of delivery.
15.2 If due to such circumstances or events the Supplier has insufficient stocks to meet all its commitments the Supplier may apportion available stocks between its customers at its sole discretion.
16. Insolvency of Customer
16.1 This Condition applies if:
16.1.1 the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or passes a resolution for its voluntary winding up or has a petition for its compulsory winding up presented against it;
16.1.2 an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property assets of the Customer; or
16.1.3 the Customer ceases, or threatens to cease, to carry on business; or
16.1.4 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer or any other matter which in the opinion of the Supplier may prejudice its rights against the Customer.
16.2 If this Condition applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel a Contract or suspend any further deliveries under a Contract without any liability to the Customer, and if the Deliverables have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
17. Termination
17.1 Without affecting any other right or remedy available to it under these Conditions, 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 other term of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
(b) the other Party repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(c) 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(d) 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 any of its creditors other than (being 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;
(e) 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 that other Party (being a company) other than 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;
(f) 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);
(g) the holder of a qualifying floating charge over the assets of that other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
(i) 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 the other Party’s assets and such attachment or process is not discharged within 14 days;
(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 Condition 17.1(c) to Condition 17.1(i) (inclusive); or
(k) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
17.2 Without affecting any other right or remedy available to it, the Supplier may terminate a Contract with immediate effect by giving written notice to the Customer if:
(a) 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 by the Supplier to make such payment; or
(b) there is a change of Control of the Customer where ‘Control’ has the meaning given to it in section 1124 of the Corporation Tax Act 2010.
18. Consequences of Termination
18.1 The termination of a Contract pursuant to Condition 17 shall not result in the automatic termination of any other Contract or Statement of Work unless the Supplier expressly elects to terminate such other Contract / Statement of Work in accordance with the terms of the particular Contract. .
18.2 On termination or expiry of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall return all of the Supplier’s equipment and any Deliverables that the Customer has not 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 or repossessed, the Customer shall be solely responsible for their safe keeping; and
(c) the following Condition shall continue in force: Condition 12 (Confidentiality/Publicity), 13 (Liability), 14 (Intellectual Property Rights), 18 (Consequences of Termination), 21 (Data Protection), and 23 (General).
18.3 Termination or expiry of a Contract shall not affect any rights, remedies, obligations or 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.
19. Compliance with Laws
19.1 The Customer shall comply with all applicable laws including but not limited to laws and conventions relating to (i) competition law, (ii) anti-bribery, and anti-corruption, and (iii) laws relating to export control and customs regulations such as (i) the rules on embargoed countries, (ii) the restrictions on the sale of products to restricted or denied customers, and (iii) the regime for the control of imports, exports, transfer, brokering and transit of dual-use items. The Customer shall not directly or indirectly utilise, sell, ship or otherwise transfer, the products purchased from the Supplier to or through any country, entity or individual as prohibited under national and international regulations.
19.2 Without prejudice to the other provisions in this Condition 19, the Customer shall comply with all applicable laws and regulations in performing its obligations under the Contract.
19.3 The Buyer shall procure that any third parties to whom the products from the Supplier will be supplied, whether in original form or as intermediate or end-product, are under the same obligations as set out in this Condition 19 such that all third parties down the supply chain, as far as the end-user, are under the same strict compliance.
19.4 The Customer agrees to indemnify and hold the Supplier, its officers, employees, agents, and representatives, harmless from and against all damages, losses, liabilities, penalties, costs and expenses, including reasonable attorney fees, as a result of any claim, suit, action, proceeding, demand, judgment or settlement arising out of Buyer’s failure to adhere to the provisions of this Condition 19.
20. Human Rights and Anti-Bribery
20.1 Both the Customer and Supplier confirm that they at all times shall comply with applicable laws, statutes, regulations and codes relating to anti-bribery including but not limited to the Bribery Act 2010.
21. Data Protection
21.1 To the extent that the Customer’s performance if its obligations and/or exercise of its rights under a Contract involve the Processing of any Personal Data in respect of which the Supplier (or any of its Affiliates) is the Data Controller and the Customer is the Data Processor, both parties agree to comply with all applicable requirements of the Data Protection Legislation and the terms set out in this Condition 21.1. For the avoidance of doubt this Condition 21 is in addition to, and does not relieve, remove or replace, a Party’s obligations under the Data Protection Legislation.
21.2 The Parties will agree, if required, terms setting out the scope, nature and purpose of Processing by the Customer, the duration of the Processing and the types of Personal Data and categories of Data Subject.
21.3 Without prejudice to the generality of Condition 21.1 the Supplier shall ensure that it has all necessary appropriate Consents and notices in place, or where applicable, has established another lawful basis to enable lawful transfer of the Personal Data to the Customer for the duration and purposes of the Contract.
21.4 Without prejudice to the generality of Condition 21.1, the Customer shall, in relation to any Personal Data processed in connection with the performance by the Customer of its obligations under a Contract:
- process that Personal Data only for the purposes necessary for the performance of the Services and always in accordance with the prior written instructions of the Supplier (as amended from time to time), unless the Customer is required by local laws and/or regulations to otherwise process such Persona Data;
(b) ensure that it has in place all appropriate technical and organisational measures, reviewed and approved in advance by the Supplier, 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);
(c) ensure that all the Customer’s Personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(d) provide to the Supplier a copy of all Personal Data held by it in the format and on the media reasonably requested by the Supplier;
(e) not transfer any Personal Data outside of the United Kingdom, unless the prior written consent of the Supplier has been obtained and the following conditions are fulfilled;
- Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Customer complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Customer complies with reasonable instructions notified to it in advance by the Supplier with respect to the Processing of the Personal Data.
(f) assist the Supplier promptly, 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 assessment and consultations with supervisory authorities or regulators;
(g) notify the Supplier immediately, but in any event no later than twenty-four (24) hours from the date of becoming aware of a Personal Data breach;
(h) at the written direction of the Supplier, delete or return Personal Data and copies thereof to the Supplier on termination of the Contract (including where applicable, procure that any Third-Party Processor storing or processing such Personal Data on its behalf delate or return Personal Data and copies thereof to the Supplier on termination of the Contract), unless required by local law and/or regulation to store the Personal Data and;
- maintain complete and accurate records and information to demonstrate its compliance with this Condition 21.4, and where reasonably required by the Supplier allow for audits by the Supplier or the Supplier’s designated auditors.
21.5 The Customer shall not appoint any Third-Party Processer of Personal Data under a Contract, unless it has obtained the Supplier’s prior written consent (such consent to be given at the Supplier’s sole discretion).
21.6 To the extent that the appointment of a Third-Party Processor has been approved by the Supplier, the Customer shall ensure that is has entered or (as the case may be) will enter with the Third-Party Processor into a written agreement incorporating terms which as substantially similar to those set out in this Condition 21. As between the Supplier and the Customer, the Customer shall remain fully and solely liable for all acts or omissions of any Third-Party Processor appointed by it pursuant to this Condition 21.6, including (but not limited to) a breach of the Data Protection Legislation by the Third-Party Processor.
22. Patterns and Moulds
22.1 The Seller shall store and part mark Patterns and Moulds at no extra cost for a period of time (“Period of Time”) as detailed below:
Patterns: 3 Months following date of transfer of Title to the Customer
Moulds: 6 Months following date of transfer of Title to the Customer
22.2 The Customer shall be responsible to request in writing prior to the end of period of time that the Patterns or Moulds are to be collected by the Customer or destroyed by the Seller at no extra cost.
22.3 Should the Customer not inform the Seller within the Period of Time, Title of the Patterns or Moulds shall pass to the seller at the end of the Period of Time, thereafter:
22.4 The Seller shall have authority to deal with and/or dispose of all or any of the part of the Patterns or Moulds.
22.5 The Customer may request the Patterns or Moulds may be held in storage for an extended Period of Time whereby the Seller will arrange at a chargeable agreed rate to the Customer to be invoiced monthly with payment to be made as per Condition 6. Payment. The Seller shall have authority to use a third party to store the Patterns and Moulds in an manner reasonable and satisfactory to the Customer indicating that the title to the Patterns and Moulds remains vested in the Customer.
23. General
23.1 Failure by the Supplier to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
23.2 If any provision or part of these Conditions shall be, or found to be by any court of competent jurisdiction, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these Conditions, all of which shall remain in full force and effect.
23.3 These Conditions shall be governed by and construed in accordance with the laws of England and Wales and any dispute shall be resolved by the English courts.
23.4 Any notice or other communication given to a Party under or in connection with a Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, or sent by pre-paid first class recorded delivery post or other next working day delivery service, commercial courier, or email.
23.5 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 23.4; if sent by pre-paid first class recorded delivery post, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one business day after transmission.
23.6 These Conditions and the documents referred to herein contain all the terms agreed between the parties regarding its subject matters and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to a Contract. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into a Contract unless such untrue statement was made fraudulently, and that party’s only remedies shall be for breach of contract as provided in these Conditions.
24. Acceptance of Terms
24.1 By submitting an Enquiry, Reference For Quote (RFQ), or Purchase Order you will be deemed to have accepted the Standard Terms And Conditions Of Supply Of Goods Or Services contained herein.
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