Terms & Conditions

TERMS AND CONDITIONS

1 Definitions and interpretation

1.1 In these Conditions, the following definitions apply:

Affiliate: means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

Applicable Law: means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction;

Bribery Laws: means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption;

Business Day: means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;

Conditions: means the Supplier’s terms and conditions of sale set out in these Conditions;

Confidential Information: means any commercial, financial or technical information, information relating to the Goods, plans, know-how or trade secrets, which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;

Contract: means the agreement between the Supplier and the Customer for the sale and purchase of the Goods incorporating these Conditions and the Order and including any schedules, attachments, annexures and statements of work;

Control: has the meaning given to it in section 1124 of the Corporation Tax Act 2010 and Controls, Controlled and under common Control shall be construed accordingly;

Customer: means the named party in the Contract who has agreed to purchase the Goods from the Supplier and whose details are set out in the Order;

Delivery Update List: has the meaning given to it in clause 2.8;

Force Majeure: means any event or sequence of events beyond a party’s reasonable control and which could not have been reasonably anticipated or avoided and which prevents it from, or delays it in, performing its obligations under the Contract including, but not limited to: (a) an act of God, fire, flood, drought, earthquake, windstorm or other natural disaster; (b) an act of any sovereign including war (or threat thereof), armed conflict (or threat thereof), invasion or act of foreign enemies, rebellion, revolution, insurrection, military or usurped power or confiscation; (c) acts of terrorism, civil war, civil commotion or riot (or the threat thereof); (d) civil emergency (whether declared or not); (e) fire or explosion (other than, in each case, one caused by breach of contract by, or with the assistance of, the party seeking to rely on it as a force majeure event or by a member of the same group as such party); (f) adverse weather conditions; (g) nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority; (h) embargo, blockade, imposition of sanctions or breaking off of diplomatic relations or similar actions; (i) law, or governmental order, rule, regulation or direction, judgment, order or decree; (j) epidemic or pandemic; (k) labour dispute including, but not limited to, strikes, industrial action, lockouts or boycott of a third party workforce only; (l) interruption or failure of utility service including to electric power, gas, water, internet or telephone service; (m) loss at sea; (n) collapse of building structures; (o) failure of plant machinery, machinery, computers or vehicles; but not including, without limitation, the Customer’s inability to pay;

Free Issue Materials: means any materials to be provided by the Customer to the Supplier free of charge in accordance with clause 4 for use by the Supplier in the production of the Goods;

Goods: means the goods and other physical material set out in the Order and to be supplied by the Supplier to the Customer in accordance with the Contract;

Intellectual Property Rights: means copyright, rights related to copyright such as moral rights and performers rights, patents, rights in inventions, rights in confidential information, Know-how, trade secrets, trademarks, geographical indications, service marks, trade names, design rights, rights in get-up, database rights, databases, domain names, business names, rights in computer software, the right to sue for infringement, unfair competition and passing off, and all similar rights of whatever nature wherever in the world arising and, in each case: (a) whether registered or not, (b) including any applications to protect or register such rights, (c) including all renewals and extensions of such rights or applications, (d) whether vested, contingent or future, and (e) wherever existing;

Know-how: means inventions, discoveries, improvements, processes, formulae, techniques, specifications, technical information, methods, tests, reports, component lists, manuals, instructions, designs, sketches, drawings and information relating to customers and suppliers (whether written or in any other form and whether confidential or not);

Location: means the address or addresses for delivery of the Goods as set out in the Order;

Order: means an order for Goods placed by the Customer with the Supplier in such form as the Supplier may require or use from time to time;

Price: has the meaning given in clause 3.1;

Specification: means the description and drawings, plans or other design works provided for the Goods and their packaging set out or referred to in the Contract;

Supplier: means Alken Systems Limited, a company registered in England and Wales with number 09716579 and whose registered office is at Unit 3 Thornsett Trading Estate, Birch Vale, High Peak, Derbyshire, United Kingdom, SK22 1AH;

VAT: means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods; and

Warranty Period: has the meaning given in clause 11.1.

1.2 In these Conditions, unless the context requires otherwise:

1.2.1 a reference to the Contract includes these Conditions, the Order and their respective schedules, appendices and annexes (if any);

1.2.2 any clause, schedule or other headings in these Conditions is included for convenience only and shall have no effect on the interpretation of the Conditions;

1.2.3 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

1.2.6 a reference to a gender includes each other gender;

1.2.7 words in the singular include the plural and vice versa;

1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email, save in respect of the service of any notice);

1.2.10 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract;

1.2.11 a reference to legislation includes all subordinate legislation made from time to time under that legislation; and

1.2.12 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.

2 Application of these Conditions

2.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.

2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, Order, confirmation of Order, Specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.

2.3 No variation of these Conditions or to an Order or to the Contract shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Supplier and the Customer respectively.

2.4 Each Order by the Customer to the Supplier shall be an offer to purchase the Goods subject to the Contract including these Conditions.

2.5 If the Supplier is unable to accept an Order, it shall notify the Customer as soon as reasonably practicable.

2.6 The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier for 20 Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.

2.7 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods shall arise, until the earlier of:

2.7.1 the Supplier’s written acceptance of the Order or issue of a Delivery Update List (defined later) containing details of that Order; or

2.7.2 the Supplier dispatching the Goods or notifying the Customer that they are available for collection (as the case may be).

2.8 The Supplier may provide the Customer with a delivery update list (Delivery Update List), setting out the following details:

2.8.1 quantity of Goods;

2.8.2 Price of Goods (subject to change in accordance with clauses 3.4 and 3.5);

2.8.3 details of any Free Issue Material to be provided in accordance with clause 4;

2.8.4 any Specification relating to any Goods;

2.8.5 version number of any design or drawing to which the Goods will be or have been manufactured; and

2.8.6 the estimated date for delivery,

and any Orders listed on that Delivery Update List shall be deemed to have been accepted by the Supplier on the date on which the Delivery Update List is provided to the Customer.

2.9 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.

2.10 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply the Goods and are incapable of being accepted by the Customer.

2.11 Marketing and other promotional material relating to the Goods are illustrative only and do not form part of the Contract.

3 Price

3.1 The price for the Goods shall be as set out in the Order or, where the Supplier has issued a Delivery Update List, as set out in that Delivery Update List, where no such provision is set out, shall be as advised by the Supplier from time to time before the date the Order is placed (Price).

3.2 All Prices are exclusive of:

3.2.1 packaging, delivery, insurance, shipping carriage and all other related charges or taxes which (if applicable) shall, unless agreed otherwise, be charged in addition at the Supplier’s standard rates, and

3.2.2 VAT (or equivalent sales tax).

3.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.

3.4 The Supplier may increase the Prices at any time by giving the Customer not less than 10 Business Days’ notice in writing.

3.5 Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Goods.

4 Free Issue Materials

4.1 Where the parties have agreed that Supplier will use Free Issue Materials in the production of any Goods, the Customer shall (at its own expense) within 10 Business Days of the acceptance of the Order to which the Free Issue Materials relate, deliver those Free Issue Materials to the Supplier’s premises or to such other location as the Supplier may communicate to the Customer from time to time.

4.2 All Free Issue Materials shall be provided to the Supplier at the Customer’s sole cost and expense, including in respect of any additional Free Issue Materials which the Customer may be required to provide to the Supplier notwithstanding whether the need for such additional Free Issue Materials has arises due to any act or omission of the Supplier.

4.3 Free Issue Materials may be subject to inspection by the Supplier upon receipt of the same. The Supplier reserves the right to refuse to produce any Goods using any defective Free Issue Materials where such defect is not remedied by the Customer prior to commencement of production or is not capable of being remedied. Without limitation, if the Supplier agrees to attempt to remedy any defect in any Free Issue Materials, or to assist the Customer in so doing, the Customer shall pay to the Supplier such additional charges as the Supplier may impose in relation to such remedial work.

4.4 All Free Issue Materials shall be handled by the Supplier at the sole risk of the Customer. The Customer shall be responsible for arranging a suitable policy of insurance in respect of all Free Issue Materials to provide adequate coverage against all risks which could arise whilst the Free Issue Materials are at the Supplier’s premises (or otherwise under the Supplier’s control), including but not limited to theft, fire and water damage. For the avoidance of doubt, the Supplier shall not be responsible for anything which may occur whilst the Free Issue Materials are being handled by it, including but not limited to any loss or damage which may occur to the Free Issue Materials whilst any process is being applied to them by the Supplier.

4.5 Any surplus or waste materials derived from any Free Issue Materials may be disposed of by the Supplier at their sole discretion.

4.6 The Supplier reserves the right to charge for the storage of Free Issue Materials at such rate as shall be agreed with the Customer if any Free Issue Materials are held by the Supplier for more than 20 Business Days, or for such reasonable period as is agreed with the Customer when the Customer’s order is accepted by the Supplier.

5 Payment

5.1 The Supplier shall invoice the Customer for the Goods, partially or in full, at any time following acceptance of the Order.

5.2 The Customer shall pay all invoices:

5.2.1 in full without deduction or set-off, in cleared funds within the time period for payment stated on the invoice or, where no such period is stated, within 30 calendar days of the date of each invoice or such other; and

5.2.2 to the bank account nominated by the Supplier.

5.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:

5.3.1 the Supplier may, without limiting its other rights, charge interest on such sums at 8% a year above the base rate of the Bank of England from time to time in force; and

5.3.2 interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.

6 Credit limit

The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.

7 Delivery

7.1 The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location and, subject to clause 7.9, on the date(s) specified in the Order.

7.2 Where the Location is outside of the United Kingdom, delivery shall be by freight and the Customer shall be responsible for engaging a freight company to act as carrier for delivery. Any cost, charge or fee for delayed discharge (demurrage) taxes, levies, custom fees, import licences shall be the sole responsibility of the Customer.

7.3 In respect of any Location within the United Kingdom, the Goods shall be deemed delivered on unloading of the Goods at the Location by the Supplier or its nominated carrier (as the case may be).

7.4 In respect of any Location outside of the United Kingdom, the Goods shall be deemed delivered on unloading of the Goods by the Supplier or its nominated carrier (as the case may be) at the premises of the freight company.

7.5 The Supplier may deliver the Goods in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.

7.6 The Customer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied provided that any variance in volume is no greater than 10% of the total volume of Goods ordered.

7.7 The Goods may be delivered by instalments if specified in the Order. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

7.8 Delivery of the Goods shall be accompanied by a delivery note stating:

7.8.1 the date of the Order;

7.8.2 the product numbers, type and quantity of the Goods in the consignment; and

7.8.3 any special handling instructions.

7.9 Time of delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet delivery dates, but such dates are indicative only.

7.10 Unless the parties agree otherwise, all packaging material is to be disposed of by the Customer at the Customer’s expense.

7.11 The Supplier shall not be liable for any delay in or failure of delivery caused by:

7.11.1 the Customer’s failure to make the Location available;

7.11.2 the Customer’s failure to prepare the Location as required for delivery of the Goods;

7.11.3 the Customer’s failure to provide the Supplier with adequate instructions for delivery or otherwise relating to the Goods;

7.11.4 a Force Majeure event.

7.12 If the Customer fails to accept delivery of the Goods, the Supplier shall store and insure the Goods pending delivery and the Customer shall pay all reasonable storage and insurance charges.

7.13 If one calendar month following the due date for delivery or collection of the Goods the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods without any obligation or liability to the Customer, except as provided for in clauses 7.13.1 and 7.13.2. The Supplier shall:

7.13.1 deduct from any proceeds of resale or disposal all reasonable storage charges and costs of resale or disposal; and

7.13.2 account to the Customer for any excess of the resale price over or invoice the Customer for any shortfall of the resale price below the Price paid by the Customer for the Goods.

8 Import and export licences

8.1 The Customer shall promptly obtain and maintain all licences, clearances and other consents necessary for the supply of the Goods (including import licences).

8.2 Without limiting clause 8.1, the Customer shall at its own cost provide to the Supplier, or (where local laws or regulations require the Supplier to do so) assist the Supplier in procuring, any documents necessary under Applicable Law for the Supplier to export the Goods to the Location in accordance with such laws and regulations.

9 Risk

9.1 Where the Location is within the United Kingdom, risk in the Goods shall pass to the Customer on delivery.

9.2 Where the Location is outside the United Kingdom, risk in the Goods shall pass when the Goods are delivered to the freight company or carrier engaged by the Customer for the transport of those Goods to the Location.

10 Title

10.1 Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.

10.2 Until title to the Goods has passed to the Customer, the Customer shall:

10.2.1 hold the Goods as bailee for the Supplier;

10.2.2 store the Goods separately from all other material in the Customer’s possession;

10.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;

10.2.4 insure the Goods from the date of delivery: (i) with a reputable insurer; (ii) against all risks; (iii) for an amount at least equal to their Price; (iv) noting the Supplier’s interest on the policy;

10.2.5 ensure that the Goods are clearly identifiable as belonging to the Supplier;

10.2.6 not remove or alter any mark on or packaging of the Goods;

10.2.7 inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 18.1.1 to 18.1.4 or 18.1.5 to 18.1.18; and

10.2.8 on reasonable notice permit the Supplier or its agent to inspect the Goods during the Customer’s normal business hours and provide the Supplier or its agent with such information concerning the Goods as the Supplier or its agent may request from time to time.

10.3 Notwithstanding clause 10.2, the Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 18.1.1 to 18.1.4 or 18.1.5 to 18.1.18 has occurred or is likely to occur.

10.4 If the Customer resells the Goods in accordance with clause 10.3, title to the Goods shall pass to the Customer immediately prior to the resale.

10.5 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 18.1.1 to 18.1.4 or 18.1.5 to 18.1.18, the Supplier may:

10.5.1 require the Customer at the Customer’s expense to re-deliver the Goods to the Supplier; and

10.5.2 if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them or to send an agent on its behalf to do so.

11 Warranty

11.1 The Supplier warrants that the Goods shall, for a period of three months from delivery (Warranty Period):

11.1.1 conform in all material respects to the Order and the Specification; and

11.1.2 be free from material defects in workmanship.

11.2 The Customer warrants that it has provided the Supplier in writing with all relevant, full and accurate information as to the Customer’s business and needs and has supplied accurate and up to date drawings and Specification for the Supplier’s use in manufacturing the Goods.

11.3 As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, repair, replace, or refund the Price of any of the Goods that do not comply with clause 11.1, provided that the Customer:

11.3.1 serves a written notice on the Supplier:

(a) in the case of defects discoverable by a physical inspection not later than five Business Days from arrival of the Goods at the Location; or

(b) in the case of latent defects, within five Business Days from the date on which the Customer became aware (or should reasonably have become aware) of the defect;

11.3.2 provides the Supplier with sufficient information as to the nature and extent of the defects and the uses to which the Goods had been put prior to the defect arising;

11.3.3 gives the Supplier a reasonable opportunity to examine the defective Goods; and

11.3.4 returns the defective Goods to the Supplier at the Customer’s expense.

11.4 The provisions of these Conditions, including the warranties set out in clause 11.1, shall apply to any of the Goods that are repaired or replaced with effect from the date of delivery of the repaired or replaced Goods.

11.5 The Supplier shall not be liable for any failure of the Goods to comply with clause 11.1:

11.5.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;

11.5.2 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;

11.5.3 to the extent that any failure of the Goods arises from a defect in or the unsuitability of any Free Issue Materials;

11.5.4 to the extent caused by the Supplier following any Specification, instruction or requirement of or given by the Customer in relation to the Goods;

11.5.5 where the Customer has failed to inform the Supplier of any update to any Specification, instruction or requirement of or given by the Customer in relation to the Goods prior to the manufacture of those Goods;

11.5.6 where the Supplier has informed the Customer in the Delivery Update List of the version of any drawing provided by the Customer to which the Supplier is manufacturing the Goods and the Customer has failed to inform the Supplier that the version number on the Delivery Update List is incorrect or out of date;

11.5.7 where the Customer modifies any Goods without the Supplier’s prior written consent or, having received such consent, not in accordance with the Supplier’s instructions; or

11.5.8 where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 11.1.

11.6 Except as set out in this clause 11:

11.6.1 the Supplier gives no warranties and makes no representations in relation to the Goods and shall have no liability for their failure to comply with the warranty in clause 11.1; and

11.6.2 all warranties and conditions (including the conditions implied by ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

12 Anti-bribery

12.1 For the purposes of this clause 12, the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

12.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:

12.2.1 all of its personnel;

12.2.2 all others associated with it; and

12.2.3 all of its subcontractors;

involved in performing the Contract so comply.

12.3 Without limitation to clause 12.2, neither party shall make or receive any bribe (which term shall be construed in accordance with the Bribery Act 2010) or other improper payment or advantage or allow any such bribe or improper payment or advantage to be made or received on its behalf, either in the United Kingdom or elsewhere and shall implement and maintain adequate procedures to ensure that such bribes or improper payments or advantages are not made or received directly or indirectly on its behalf.

12.4 The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach by the Customer of any of the requirements in this clause 12.

13 Intellectual property

13.1 Where the Supplier has been engaged by the Customer to produce any designs, drawings or plans in respect of any Goods or where the Supplier has been required to design or produce any jig, device or tool for use in the production of the Goods, all Intellectual Property Rights in connection with the same shall remain the Supplier’s (or its licensor’s) property and nothing in these Conditions is intended to pass ownership of such rights to the Customer.

13.2 Except as necessary to permit the Customer to possess and make use of the Goods, nothing in these Conditions grants the Customer a licence in relation to the Intellectual Property Rights referred to at clause 13.1 above.

13.3 Where any Goods are manufactured by the Supplier using Free Issue Materials, the Customer shall indemnify and hold harmless the Supplier from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that the Goods and/or Free Issue Materials infringe the Intellectual Property Rights of any third party.

14 Indemnity and insurance

14.1 The Customer shall indemnify the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses which the Supplier may suffer or incur directly or indirectly from the Customer’s breach of any of its obligations under the Contract.

14.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom or such other country by agreement in writing with the Supplier to cover its obligations under the Contract. On request, the Customer shall supply (so far as is reasonable) evidence of the maintenance of the insurance and all of its terms from time to time applicable.

15 Limitation of liability

15.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 15.

15.2 Subject to clause 15.3, the Supplier’s total liability shall not exceed the Price of the individual Goods out of which any such liability arises and, in any event, the Supplier shall not be liable for any consequential, indirect or special losses nor for any of the following (whether direct or indirect): (i) loss of profit; (ii) loss of data; (iii) loss

of use; (iv) loss of production; (v) loss of contract; (vi) loss of opportunity; (vii) loss of savings; (viii) discount or rebate (whether actual or anticipated); or (ix) harm to reputation or loss of goodwill.

15.3 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

15.3.1 death or personal injury caused by negligence;

15.3.2 fraud or fraudulent misrepresentation; or

15.3.3 any other losses which cannot be excluded or limited by Applicable Law.

16 Confidentiality and announcements

16.1 The Customer shall keep confidential all Confidential Information of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:

16.1.1 any information which was in the public domain at the date of the Contract;

16.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

16.1.3 any information which is independently developed by the Customer without using information supplied by the Supplier; or

16.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

16.2 This clause 16 shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.

16.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

17 Force Majeure

Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 90 days, the party not affected may terminate the Contract by written notice to the other party.

18 Termination

18.1 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:

18.1.1 commits a material breach of the Contract and such breach is not remediable;

18.1.2 commits a material breach of the Contract which is not remedied within ten Business Days of receiving written notice of such breach;

18.1.3 has failed to pay any amount due under the Contract on the due date and such amount remains unpaid 10 Business Days after the date that the Supplier has given notification to the Customer that the payment is overdue; or

18.1.4 has any consent, licence or authorisation held by it revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.

18.1.5 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

18.1.6 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;

18.1.7 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

18.1.8 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;

18.1.9 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;

18.1.10 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;

18.1.11 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;

18.1.12 has a resolution passed for its winding up;

18.1.13 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

18.1.14 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;

18.1.15 has a freezing order made against it;

18.1.16 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;

18.1.17 is subject to any events or circumstances analogous to those in clauses 18.1.5 to 18.1.16 in any jurisdiction;

18.1.18 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 18.1.5 to 18.1.17 including giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.

18.2 The Supplier may terminate the Contract at any time by giving not less than 20 Business Days’ notice in writing to the Customer if the Customer undergoes a change of Control.

18.3 The right of the Supplier to terminate the Contract pursuant to clauses 18.1.5 to 18.1.18 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) of the Customer where the amalgamated, reconstructed or merged entity agrees to adhere to the Contract.

18.4 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 18, it shall immediately notify the Supplier in writing.

18.5 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.

19 Notices

19.1 Any notice given by a party under these Conditions shall:

19.1.1 be in writing and in English;

19.1.2 be signed by, or on behalf of, the party giving it; and

19.1.3 be sent to the relevant party at the address set out in the Contract.

19.2 Notices may be given, and are deemed received:

19.2.1 by hand: on receipt of a signature at the time of delivery;

19.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting; and

19.2.3 by Royal Mail International Tracked & Signed post: at 9.00 am on the fourth Business Day after posting;

19.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 19.1 and shall be effective:

19.3.1 on the date specified in the notice as being the date of such change; or

19.3.2 if no date is so specified, ten Business Days after the notice is deemed to be received.

19.4 This clause 19 does not apply to notices given in legal proceedings or arbitration.

19.5 A notice given under these Conditions is not validly served if sent by email.

20 Cumulative remedies

The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.

21 Time

Unless stated otherwise, time is of the essence of any date or period specified in the Contract in relation to the Customer’s obligations only.

22 Further assurance

The Customer shall, at the request of the Supplier and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.

23 Entire agreement

23.1 The parties agree that the Contract (incorporating these Conditions) constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

23.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

23.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.

24 Variation

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

25 Assignment

25.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed.

26 Set-off

26.1 The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract.

26.2 The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

27 No partnership or agency

The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

28 Equitable relief

The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

29 Severance

29.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

29.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

30 Waiver

30.1 No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

30.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.

30.3 A waiver of any term, provision, condition or breach of the Contract by the Supplier shall only be effective if given in writing (excluding email) and signed by the Supplier, and then only in the instance and for the purpose for which it is given.

31 Compliance with law

The Customer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.

32 Conflicts within the contract

If there is a conflict between the terms contained in the Conditions and the terms of the Order, any schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.

33 Costs and expenses

The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).

34 Third party rights

34.1 Except as expressly provided for in clause 34.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

34.2 Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

35 Governing law

The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

36 Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).