Oxford Lab Technologies Ltd
Terms and Conditions
V5.0, 29 Sep 2022
GENERAL TERMS AND CONDITIONS
1. General
1.1 In These Conditions:
1.1.1 "Company" or “OLT” shall mean Oxford Lab Technologies Ltd (Company registered in England and Wales under company number 10250680) or any subsidiary or associated company.
1.1.2 "Customer" shall mean any company or any subsidiary or associated company, organisation or person ordering, or accepting a quotation for, the Company's goods or services.
1.1.3 "Communication" shall mean any communication or imparting of information whether verbal or by any other means.
1.1.4 "These Conditions" shall mean These Conditions in full. If any provision of These Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other conditions and the remainder of the provision in question shall not be affected thereby.
1.1.5 "Intellectual Property" (or IP) means any patent, copyright, registered design or unregistered design right, trade marks (whether registered or unregistered) and any application for any of the foregoing, any rights in respect of confidential information and any other intellectual property right.
1.1.6 “Goods” means the software and/or hardware agreed in the Contract to be purchased by the Customer from the Company (including any part of parts of it);
1.1.7 “Input Material” means any documents in writing including data or other information provided by the Customer relating to the Services;
1.1.8 “Maintenance” means the maintenance, data services, support or subscription services which may form part of the Services (as the case may be) as attached to this Contract which shall form part of this Contract;
1.1.9 “Normal Working Hours” means the hours 9.00 am to 5.00 pm UK time on weekdays (excluding weekends and public holidays);
1.1.10 “Premises” means the premises of the Customer as set out in the Contract or as specified by the Customer at which the Service is to be provided by the Company;
1.1.11 “Quotation” means the Company's quotation for the Goods, Maintenance and/or the Services (as the case may be)
1.1.12 “Services” means the services to be provided by the Company under the Contract including the software subscriptions, delivery, installation of the Goods and Maintenance (where applicable);
1.1.13 “Software” as set out in clause 18.
1.1.14 “Charges” means the Company's charges for the Goods and/or Services (as the case may be) as set out in the Quotation or as required to be paid by the Customer from time to time;
1.1.15 “Confidential Information” means information belonging to or relating to a party's business affairs or activities which (i) has been labelled as such or identified as Confidential Information or (ii) may reasonably be deemed to be confidential in the circumstance of its disclosure or use, including (but not limited to) any documents We produce for You as part of the Services or Goods.
1.1.6 “Customer Data” means the data inputted by Customer, or by Company on Customer's behalf for the purpose of using the Goods and/or the Services.
1.2 The headings in These Conditions are for convenience only and shall not affect their interpretation in These Conditions.
1.3 References to any statute, enactment, order, regulation or other similar instrument shall be construed as references to the statute, enactment, order, regulation or instrument as amended by any subsequent statute, enactment, order, regulation or instrument or as contained in any subsequent re-enactment, modification or statutory extension of any of the above.
1.4 Except where the context requires otherwise, the singular includes the plural and vice versa; a reference to one gender includes all genders; words denoting persons include firms and corporations and vice versa.
1.5 Any reference to a clause shall be a reference to such clause in These Conditions.
1.6 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
1.7 If any provision of These Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of These Conditions and the remainder of such provision shall continue in full force and effect.
1.8 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under These Conditions.
1.9 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of These Conditions.
1.10 No term of These Conditions will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person other than the Company or the Customer.
1.11 Your statutory rights remain unaffected.
2. Application of Terms
2.1 The Contract, subject to any agreed variation, will be on These Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document). No terms or conditions will form part of the Contract simply as a result of such document being referred to in the Contract.
2.2 These Conditions apply to all the Company's sales and any variation to These Conditions and any representations about the Goods or Services shall have no effect unless expressly agreed in writing and signed by an authorised representative of The Company. Nothing in this Condition will exclude or limit the Company's liability for fraudulent misrepresentation.
2.3 Each order for Goods or Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods or Services subject to These Conditions.
2.4 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Customer.
2.5 The Customer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.6 Any quotation is given on the basis that no contract will come into existence until the Company despatches an acknowledgement of order to the Customer. Unless otherwise specified, any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it. The Company retains the right to withdraw a quotation at any time without notice. Quotations are based on the customer ordering all items in the quotation. Discounts may not be applied if only part of the quote is ordered or items added to the quotation without prior written notice from the Company.
3 Quality assurance
3.1 Certificates of Conformity will be supplied when specified in the contract for which the Company reserve the right to levy a charge. The current charge for a certificate will be quoted on request.
4 Prices
4.1 Company reserves the right to make an environmental charge (where applicable) where it incurs costs as a result of the necessity to comply with current legislation requirements.
4.2 Prices given in any Communication by the Company should only be regarded as correct at time of issue, or if printed, correct at date of publication. All prices and charges, other than those fixed by specific contract, are subject to alteration without notice.
4.3 Any typographical, clerical or other error or omission shall be subject to correction without any liability on the part of the Company.
4.4 The price for the Goods and Services shall be exclusive of any value added tax and all cost and charges in relation to transport, unloading and insurance.
5 Description
5.1 The description of the Goods and Services shall be as set out in the Company's acknowledgement of order.
5.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They will not form part of this Contract.
6 Transport and Carriage
6.1 Despatch of goods will be made by the most appropriate method or as specified by the Customer (subject to all Health & Safety and other relevant regulations being met).
6.2 All orders will be subject to a processing and delivery charge to include where applicable the cost of cases, other containers, packing material and other freight charges, etc. Unless otherwise agreed such costs will be chargeable to the purchaser. The Seller reserves the right to make an additional charge to cover the cost of necessary specialised packaging used in the despatch of products.
7 Delivery dates and non-delivery
7.1 Where goods are supplied within the UK delivery shall take place at the Company's premises, unless otherwise agreed in writing by the Company.
7.2 Deliveries outside the UK will be in accordance with current Incoterms. The relevant Incoterm will be agreed in writing between buyer and seller for each shipment overseas.
a. The cost of cases and other containers, packaging costs, dock and airport dues, port rates and customs entry, freight, insurance, agency fees and other charges which may be incurred are chargeable to the Purchaser. Cases and other containers are not returnable.
b. Such orders shall be on an ex-works basis. Delivery to docks, airports or other consolidation addresses may be charged extra.
c. The Purchaser shall be responsible for complying with any legislation or regulations governing the importation of the goods into the country of destination and for the payment of any duties thereon.
7.3 Items are offered subject to them being in stock at the date of receipt of the Customer's order. The Company will endeavour to adhere to delivery dates however, time for delivery shall not be of the essence, and shall not be capable of being made of the essence by notice. Failure to meet quoted or expected delivery dates shall not entitle the Customer to make a claim against the Company for loss.
7.4 If the Customer declines to accept goods when available for delivery or as agreed, the Company may at its discretion store the goods and take reasonable steps to prevent their deterioration until actual delivery and the Customer shall pay the Company the reasonable cost (including insurance) of so doing.
7.5 The Company shall not be liable for any non-delivery of goods (even if caused by Company's negligence) unless written notice is given to the Company within 7 days of the date of the invoice.
7.6 Receipt of an invoice must be regarded as notification of despatch. If the goods have not been received within 7 days of invoice date the Company (and the carrier if known) must be informed in writing in accordance with clause 7 so that the consignment can be traced or a claim lodged.
7.7 Any liability of the Company for non-delivery of the goods shall be limited to replacing the goods within a reasonable time or issuing a credit note against any invoice raised for such goods.
8 Property and Risk
All goods are supplied by the Company on the following conditions:
8.1 Risk shall pass to the Customer on delivery of the goods in accordance with clauses 7.1 or 7.2.
8.2 The goods shall remain the sole and absolute property of the Company until payment in full of the price of the goods, in cash or cleared funds, has been received.
8.3 Until the goods are paid for in full, the Customer shall:
8.3.1 hold the Goods on a fiduciary basis as the Company's bailee;
8.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company's property;
8.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company; and
8.3.5 hold the proceeds of the insurance referred to in condition 8.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
8.4 The Customer may resell the goods before ownership has passed to it solely on the following conditions
8.4.1. any sale shall be effected in the ordinary course of the Customer's business at full market value; and
8.4.2. any such sale shall be a sale of the Company's property on the Customer's own behalf and the Customer shall deal as principal when making such a sale.
8.5. Any right of the Customer to possession of the goods shall cease immediately if:
8.5.1. the Customer becomes unable to pay or stops paying its debts;
8.5.2. the Customer makes an arrangement with its creditors generally;
8.5.3. a receiver is appointed over any of the Customer's property whereupon the Company shall have the right by its servants or agents to enter onto any premises owned or occupied by the Customer or any third party in order to remove such of the goods as maybe stored there.
8.6. Payment shall be due whether or not property in the goods has passed as above and the Company shall be entitled to sue for any monies due under any contract even if the property in the goods has not passed.
8.7
The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer's right to possession has terminated, to recover them.9. Terms of payment and credit
9.1 Unless the Company has agreed in writing other terms, payment should be received no later than 14 days from invoice date. The right is reserved to request a remittance with order, or to submit a pro forma invoice where the purchaser does not have a credit account with the seller. The Company also reserve the right to charge interest at 8% above the Bank of England base rate ruling at the date the amount is due, or at such rate as specified by The Late Payment of Commercial Debts (Interest) Act 1998 if higher.
9.2 The yearly charges indicated on Maintenance and/or service contract schedules are payable in advance on an annual basis no later than the commencement date shown on the contract schedule. Charges for renewal of contracts are payable on or before the renewal date.
9.3 The Company may, at its discretion, refuse or limit the amount of credit given to any customer and withhold supplies or services there from.
9.4 Overseas customers should pay in advance the full sum due prior to order processing unless otherwise agreed with the export department.
9.5 Time for payment shall be of the essence.
9.6 No payment shall be deemed to have been received until the Company has received cleared funds.
9.7 All payments payable to the Company under the Contract shall come due immediately upon termination of this Contract be despite any other provision.
9.8 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
9.9 The seller can accept payments by bank transfer only.
9.10 If payment is not made on the due date, the Company shall be entitled, without limiting any other rights it may have:
9.10.1 to charge interest on the outstanding amount (both before and after any judgment) at the rate of 8% above the prevailing base lending rate from time to time of Lloyds Bank Plc. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
9.10.2 terminate the Contract or suspend any further deliveries of the Goods to the Customer;
9.10.3 suspend all further delivery or Services until payment has been made in full;
9.10.4 make a storage charge (including insurances) for any undelivered Goods at its current rates from time to time as set out in accordance to clause 7; and
9.10.5 stop any Goods in transit.
9.11 The Company may without prejudice to any other rights it may have set off any liability of the Customer to the Company against any liability of the Company to the Customer.
10 Order cancellation
10.1 Cancellation or part cancellation of an order can only be accepted with the Company's prior agreement. The Company reserve the right to recover from the Customer any losses (including profit), costs and expenses incurred up to the date of cancellation. Orders for Custom Specified/Non-Catalogue product may not be cancelled without prior agreement with the Company.
11. Warranties and Liability
11.1 Subject to the following provisions the Company warrants that any Goods supplied will correspond with their specification at the time of delivery and will be free from defects in workmanship for a period of 14 days from the date of their initial use or 14 days from delivery, whichever is the first to expire, except that so far as it is permitted to do so, the Company is prepared to pass on to the Customer such benefit of any warranty, guarantee or term on the Goods in relation to quality, fitness for purpose or otherwise as is normally given with the Goods by the supplying company. However the Company can accept no liability whatsoever that such warranty, guarantee or term will be passed to the Customer by the supplying company.
11.2 The Company warrants to the Customer that the Services will be provided using reasonable care and skill. Where the Company supplies in connection with the provision of the Service any goods supplied by a third party, the Company does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, except that so far as it is permitted to do so the Company is prepared to pass on to the Customer such benefit of any warranty or guarantee as is normally given with the Software by the supplying company. However, the Company can accept no liability whatsoever that such warranty, guarantee or term will be passed to the Customer by the supplying company.
11.3 The Customer warrants that all existing supporting equipment, software and storage media used in connection with the Services by the Company, is licensed to the Customer.
11.4 The Customer warrants that the storage media on which the Services are supplied will be free from defects in materials and workmanship under normal use.
11.5 The Company shall be under no liabilities under the above warranties:
11.5.1 in respect of any defect in the Goods arising from any drawing, design and specification supplied by the Customer;
11.5.2 in respect of any Goods where the materials are not manufactured by the Company;
11.5.3 in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions (whether oral or in writing), mis-use, alteration or repair of the Goods without the Company's written approval;
11.5.4 if the total price for the Goods has not been paid by the due date of payment; and
11.5.5 for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Customer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any fault of the Customer.
11.6 Subject as expressly provided in the Contract, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.7 A claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specifications shall (whether or not delivery is refused by the Customer) be notified to the Company within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. A reasonable time is deemed to be within 7 days of discovery of any defect or failure, at which time no alterations to the Goods must have taken place by employees, agents or sub-contractors on behalf of the Customer. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
11.8 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods is notified to the Company in accordance with the Contract the Company may replace the Goods (or the part in question) free of charge or, at the Company's sole discretion, or refund to the Customer the price of the Goods (or a proportionate part of the price) in which case the Company shall have no further liability to the Customer.
11.9 Except in respect of death or personal injury caused by the Company's negligence, or liability for defective products under the Consumer Protection Act 1987, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent) or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees, agents or otherwise) which arise out of or in connection with any supply under the Contract (including any delay in supply or any failure to make any supply in accordance with the Contract or at all) or their use by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price paid by the Customer in accordance with the terms of the Contract.
11.10 The Licensee acknowledges and agrees that the limitations contained in this clause 11 are reasonable and acceptable to the Licensee.
11.11 The Company shall not be liable for a breach of warranty unless:
11.11.1 the Customer gives written notice in accordance to clause 11 and 11.7
11.11.2 the Company is given a reasonable opportunity after receiving the notice of examining the such Goods and the Customer (if asked to do so by the Company) returns such Goods to Company's place of business at Customer's cost for the examination to take place there.
11.12 the Company shall not be liable for a breach of the warranties if:
11.12.1 the Customer makes any further use of such Goods after giving such notice; or
11.12.2 the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
11.12.3 the Customer alters or repairs such Goods without the written consent of the Company.
11.13 Subject to the above, if any of the Goods do not conform with the warranties the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such goods and it shall have no further liability for a breach of the warranty in respect of such Goods.
11.14 Damaged Goods and any packaging relating to it must be retained in case inspection is required. Subsequently the Company may require the Customer to return damaged Goods in accordance with clause 10.
13. Limitation of Liability
13.1 Subject to clauses 7 and 14 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
13.1.1 any breach of These Conditions; and
13.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
13.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by
13.3 Nothing in These Conditions excludes or limits the liability of Company for death or personal injury caused by the Company's negligence or for fraudulent misrepresentation.
13.4 Subject to the above:
13.4.1 The Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and
13.4.2 the Company shall not be liable to the Customer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
13.5 Nothing in These Conditions shall affect the statutory rights of the Customer dealing as a consumer.
14. Infringement of patents, registered designs, etc.
14.1 Where goods are supplied to special order the Customer will indemnify and keep the Company fully and effectively indemnified against all costs, claims, damages, losses, liabilities and expenses of whatever kind incurred or suffered by the Company as a result of using a specification or design stipulated by the Customer.
14.2 Whilst all Goods are supplied in good faith the Company can give no undertaking that use or sale of Goods supplied will not cause the Customer to infringe third party intellectual property rights or similar proprietary rights.
15. Force Majeure
15.1 The Company shall not be liable to the Customer or deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company's obligations in respect of the Services, if the delay or failure was due to any cause beyond the Company's reasonable control of the Company, including (without limitation) any strike, lockout or other labour dispute, adverse weather conditions, travel delays and mechanical breakdowns, failure of power supplies, war, epidemic, pandemic, insurrection, civil strife, riots, government action, earthquake, power failure, act of hostile forces, terrorism, civil disturbance or extensive disruption of public services and any state of the Premises or presence of any substances thereat rendering them dangerous in the Company's opinion to any employee or agent or sub-contractor of the Company; and the duty of the Company to provide the Services shall be suspended and shall only recommence when the circumstances giving rise to such suspension shall have ceased. If such circumstances shall continue for more than 30 days then either party shall be entitled to terminate the Contract forthwith by notice in writing to the other and neither party shall have any liability to the other in respect of the termination of the Contract as a result of such circumstances.
16. Applicable Law
16.1 The contract shall be governed by and construed in accordance with English law and the parties irrevocably agree to submit to the jurisdiction of the English Courts save that Company shall be entitled at its sole discretion to refer such disputes to the courts of any jurisdiction in which the Customer carries or has carried on business.
17. Health and Safety
17.1 General – Goods supplied should be used only for the purpose for which they are intended and in accordance with any instructions supplied. The Customer is responsible for determining suitability for use when:
17.1.1 services and/or ancillary items are used with goods supplied,
17.1.2 goods are specially manufactured or altered for Customers at their specific request.
17.2 Hazardous materials – the Company will only supply and consign hazardous materials to bona fide businesses and reserve the right to withhold supplies of such goods from any Customer. the Company accepts responsibility for providing suitable packaging and means of transport in compliance with all relevant English legislation for delivery to Customers in accordance with clauses 7.1 or 7.2. If the Company delivers a hazardous material to the Customer it will provide Safety Data Sheets (as required by The Chemicals (Hazard Information and Packaging for Supply) Regulations 1994) free of charge no later than the date on which the material is first supplied to the Customer. the Company will on request provide further Safety Data Sheets and any other available information to assist Customers in conducting risk assessments. It is the Customer's responsibility to conduct such assessments and the Company is not liable for any failure on the part of the Customer to do so. Once in possession of any hazardous material, the Customer shall accept responsibility for ensuring its safe handling, storage and use.
17.3 Return of hazardous materials to the Company's premises – The Customer accepts responsibility for providing suitable packing, labelling, documentation and means of transport in compliance with existing legislation, and accepts full liability for handling and transportation when hazardous materials are returned to the Company.
17.4 Contaminated equipment for repair, return or maintenance – The Customer is responsible for ensuring that any equipment which has been exposed to any hazardous or potentially hazardous material is properly decontaminated prior to the commencement of any work on that equipment by the Company personnel. The Customer will issue a certificate detailing the nature of the contaminant(s) and the procedures used to ensure adequate decontamination. the Company reserve the right to charge additional expenses incurred as a result of the Customer failing to decontaminate equipment. The Customer accepts full liability should injury be caused by any such contamination and shall indemnify the Company against any claims and costs suffered or incurred by the Company as a result of injury to the Company's employees, agents or subcontractors arising from such contamination.
18. User Licence
18.1 If the Company refers to a user licence in the confirmation of order, the price of the Goods includes the non-exclusive, time limited, licence fee for the Customer's right to use the Goods, including but not limited to software and hardware.
18.2 If the Customer is provided with any user licence in respect of the Software, the Customer shall sign and return it to the Company within seven days of installation of the Software, unless the licence has been supplied on a “shrinkwrap” or “click-wrap” basis.
18.4 If any licence has been provided, or if no user licence has been provided to the Customer, the Customer hereby accepts a non-exclusive, non-transferable, time limited, licence to use the Goods on the following conditions:
18.4.1 the Customer shall not copy (except to the extent permissible under applicable law or for normal operation of the Goods), reproduce, translate, adapt, reverse engineer, vary or modify the Goods or Software or Hardware, nor communicate it to any third party, without the Company's prior written consent;
18.4.2 the Customer shall not use the Software on any equipment other than the Goods, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides;
18.4.3 the Customer shall not use Goods or Hardware in conjunction with any other Software other than supplied and agreed in writing by the Company, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Goods or Hardware on the medium on which it resides;
18.4.4 such licence shall be terminated by the Customer by giving the Company the 90 days' written notice; and
18.4.5 such licence shall be terminated by the Company by giving the Customer the 14 days' written notice; and
18.4.6 on or before the expiry of this licence, the Customer shall return to the Company all copies of the Software and Hardware and any other Goods in its possession.
19. Services
19.1 The Company shall provide the Services to the Customer subject to the terms in this Contract.
19.2 No employee, sub-contractor or agent of the Company has any authority to add to or vary this Contract or to make any representation or warranty unless such addition or variation or representation or warranty is in writing and signed by a duly authorised representative of the Company.
19.3 The Customer shall at its own expense supply in a timely manner the Company with the Input Material to enable the Company to provide the Services in accordance with the Contract. The Customer shall ensure the accuracy of all Input Material.
19.4 The Company shall have no liability for any loss or damage or accidental loss or damage resulting in the loss of the Input Material.
19.5 Any Quotation is valid for the period stipulated therein, and the Company may withdraw it at any time without notice to the Customer.
19.6 Further details about the Services, and advice or recommendations about it or its utilisation, which are not given in the Quotation shall be available on written request to the Company.
19.7 The Company may correct any typographical or other errors or omissions in any promotional literature, Quotation, price list, acceptance of offer, invoice or other document relating to the provision of the Services without any liability to the Customer.
19.8 The Company may at any time without notifying the Customer make any changes to the Services which are necessary to comply with any applicable safety or other statutory provisions and requirements affecting the work to be carried out or the conduct of the Company's employees, sub-contractors or agents while on or in the vicinity of the Premises, or which do not materially affect the nature or quality of the Services.
19.9 For Subscription Services (including subscription services such as software subscriptions or hardware maintenance subscription) the initial term is 12 months. Subscription Services may be terminated to the end of the initial term or any Subsequent Terms upon one 90 (ninety) day's prior written notice. Unless so terminated, this Agreement shall automatically renew for subsequent twelve months periods (each a “Subsequent Term”) and become due for payment on the day of renewal.
20. Orders and Specifications
20.1 Each order or acceptance of a Quotation for Goods or Services by the Customer shall be deemed to be an offer by the Customer subject to These Conditions. The Customer shall ensure that its order is complete and accurate.
20.2 A binding contract shall not come into existence between the Company and the Customer unless and until the Company issues a written order acknowledgement to the Customer, or the Company delivers the Goods or Services to the Customer (whichever occurs earlier).
20.3 The Company may deliver the Goods or Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable Contract. Each instalment shall be a separate Contract and no cancellation or termination by either party of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
20.4 No order which has been accepted by the Customer or acknowledged by the Company may be cancelled by the Customer, except with the agreement in writing of the Company and provided that the Customer indemnifies the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
21. Charges
21.1 In consideration of the provision of the Goods or Services by the Company and subject to any special credit terms agreed, the Customer shall pay the Charges.
22. Termination
22.1 Without prejudice to any other rights and remedies which the Company may possess, the Company shall be entitled by notice to the Customer to terminate the Contract and all the Company's outstanding obligations hereunder if:
22.1.1 the Customer is in arrears with any payment due hereunder for a period of 30 days or more; or
22.1.2 the Customer provides materially inaccurate or misleading facts or information in connection with the Contract; or
22.1.3 a bankruptcy or insolvency petition is presented in respect of the Customer or the Customer becomes bankrupt or insolvent or the Customer makes or intends to make a proposal for any arrangement or composition with the Customer's creditors; or
22.1.4 a petition for an administration order or winding up order is presented in respect of the Customer or the Customer goes into liquidation whether compulsory or voluntary; or
22.1.5 any execution or distress or seizure is levied on or sued out against any of the real or personal property of the Customer; or
22.1.6 the Customer shall have a receiver or administrative receiver or manager appointed in respect of the whole or any part of the Customer's undertaking or property; or
22.1.7 the Customer is unable to pay its debts.
23. Liability Of Customer On Termination
23.1 Upon termination of the Contract under clause 22 the Customer shall pay to the Company, on demand, all arrears of payments, interest and other sums payable under the Contract up to the date of termination and all costs and expenses (including legal costs) on a full indemnity basis incurred or sustained by the Company in enforcing any of the terms of the Contract.
24 Rights Of Company on Termination
24.1 For the avoidance of doubt upon termination of the Contract under clause 22 the Company shall have no further obligation to provide all or any of the Services and shall be entitled to cease to provide the Services hereunder without further notice to the Customer and shall not be under any liability whatsoever to the Customer in consequence of the Company ceasing to provide all or any of the Services. Termination of the Contract shall not affect any rights which have accrued prior to termination.25. Assignment and Sub-Contracting
25.1 The Company may perform its obligations hereunder through agents or sub-contractors. The Contract may be assigned by the Company but shall not be assigned by the Customer without the Company's prior written consent. References herein to the Company include references to any assignee of the Company's rights or obligations under the Contract.26. Intellectual Property Rights
26.1 All Intellectual Property Rights in any guidance, specifications, instructions, toolkits, plans, data, drawings, databases, software, patents, patterns, models, designs or other material (the "IP Materials"):
(a) made available by or on behalf of the Company shall remain the property of the Company;
(b) prepared by or for the Customer on behalf of the Company for use, or intended use, in relation to the performance by the Contractor of its obligations under the Contract shall belong to the Company;
and the Contractor shall not, and shall ensure that Staff employed by Contractor shall not, (except when necessary for the performance of the Contract) without prior Approval, use or disclose any Intellectual Property Rights in the IP Materials.
26.2 The Customer hereby assigns to the Company, with full title guarantee, all Intellectual Property Rights which may subsist in the IP Materials prepared in accordance with clause 26.1. This assignment shall take effect on the date of the Contract or as a present assignment of future rights that will take effect immediately on the coming into existence of the Intellectual Property Rights produced by the Customer. The Customer shall execute all documentation necessary to execute this assignment.
26.3 The Customer shall waive or procure a waiver of any moral rights subsisting in copyright produced by the Contract or the performance of the Contract.
26.4 The Customer shall ensure that the third party owner of any Intellectual Property Rights that are or which may be used to perform the Contract grants to the Company an exclusive licence or, if itself a licensee of those rights, shall grant to the Company an authorised sublicence, to use, reproduce, modify, develop and maintain the Intellectual Property Rights in the same. Such licence or sublicence shall be exclusive, perpetual, royalty free and irrevocable and shall include the right for the Company to sub license, transfer, novate or assign to any other third party supplying services to the Company.
27. Entire Agreement
27.1 The Contract constitute the entire agreement between the parties as to the matters to which it relates and supersedes all and any previous agreement or understanding between the parties and may only be varied by written agreement of the parties. All prior representations and statements made before the Contract was entered into and not expressly repeated in it are withdrawn and of no effect.28. Severability
28.1 If any provision of the Contract is held by any court or other competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.29. Notices
29.1 Any notice to be given hereunder by either party to the other may be served in writing personally upon the other or by sending the same by pre-paid post addressed to the other party in the case of the Company at its registered office or principal place of business and in the case of the Customer at the Premises or at the Customer's last known address. Any notices sent by post shall be deemed to be served on the date after posting and in proving such service it shall be sufficient to show that a letter containing the same was properly addressed, stamped and posted.30. Failure and delay
30.1 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party or any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.31. Third Party Rights
31.1 Except the rights of those parties set out in clauses 8 and 25, a person who is not a party to the Contract may not enforce any of the terms under the Contracts (Rights of Third Parties) Act 1999.32. Confidentiality
32.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:32.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
32.1.2 was in the other party's lawful possession before the disclosure;
32.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
32.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence.
32.2 Subject to clause 32.4, each party shall for the duration of the Agreement and for five (5) years thereafter, hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Agreement.
32.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement. In order to provide the Services, Company may need to share Customer information and contact details with the Vendor(s) of third party software or hardware which requires support. Customer hereby authorize such information sharing and agree that the relevant Vendor may i) communicate directly with Customer, ii) provide Services directly to Customer.
32.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 32.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
32.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
32.7 Customer consents that Company may publicise its involvement with the Customer.
33. Anti-Bribery and Modern Slavery
Company and Customer shall:
33.1 comply with all applicable laws and regulations relating to anti-bribery and anticorruption including but not limited to the Bribery Act 2010 and the Modern Slavery Act 2015 (Relevant Requirements); and
33.2 have and shall maintain in place throughout the term of the Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010 and Modern Slavery Act 2015, to ensure compliance with the Relevant Requirements.
34. Data Protection
34.1 You shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
34.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 34 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
34.3 Both parties acknowledge that:
34.3.1 if Company processes any personal data on Customer's behalf when performing Company obligations under the Agreement, Customer are the controller and Company are the processor for the purposes of the Data Protection Legislation.
34.3.2 Company's Privacy Policy sets out the scope, nature and purpose of processing by Company, the duration of the processing and the types of personal data and categories of data subject.
34.3.3 the personal data may be transferred or stored outside the EEA or the country where Customer is located in order to carry out the Services and Company's other obligations under the Agreement.
34.4 Without prejudice to the generality of clause 34.2, You will ensure that Customer has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Company for the duration and purposes of the Agreement.
34.5 Without prejudice to the generality of clause 34.2 We shall, in relation to any personal data processed by Company in performance of Company's obligations under the Agreement:
34.5.1 process that personal data in accordance to Company's Privacy Policy which Company reserves the right to change from time to time without notice. Company will process that personal data as and when Company is required by laws of any member of the European Union and/or Domestic UK Law to process such personal data (Applicable Laws). If Applicable Laws require Company to process such personal data, Company shall tell You before such processing unless those Applicable Laws prohibit Company from doing so;
34.5.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
a) Customer or Company have provided appropriate safeguards in relation to the
transfer;
b) the data subject has enforceable rights and effective legal remedies;
c) We comply with Company obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred.
34.5.3 assist Customer, at Customer's cost, in responding to any request from a data subject to enable Customer to comply with Customer's Data Protection Legislation obligations with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
34.5.4 promptly notify Customer on becoming aware of a personal data breach affecting Customer's personal data;
34.5.5 at Customer's written request, delete or return Customer's personal data on termination of the Agreement unless required by Applicable Law to store the personal data; and
34.5.6 maintain records and information to demonstrate Company's compliance with this clause 34 and promptly tell Customer if, in Company's opinion, Customer's instructions infringe Data Protection Legislation.
34.6 Each party shall ensure that it has in place appropriate technical and organisational measures, 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, having regard to the state of technological development and the cost of implementing any such measures.
34.7 Customer consent to Company appointing the third parties listed in Company's Privacy Policy as third party processors of personal data under the Agreement. If additional third party processors are required to be added to this list these will be added to Company Privacy Policy. Company confirms that Company have entered or (as the case may be) will enter into a written agreement with third-party processors incorporating terms which are substantially similar to those set out in this clause 34. We shall remain fully liable for all acts or omissions of any third-party processor appointed by Company pursuant to this clause 34.
34.8 We shall take reasonable steps to ensure the reliability of any of Company employees or contractors who may have access to Customer's personal data, ensuring in each case that access is limited to those individuals who need to know and have access to Customer's personal data, for the purposes of the Agreement, and to comply with Data Protection Legislation. We shall ensure that all such individuals receive training on Data Protection Legislation and are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
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