Createc Ltd Standard Terms and Conditions of Sale
Version 2 — 9 June 2026
1. Definitions
The definitions and rules of interpretation in this clause apply in these conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: has the meaning given in clause 19.2.
Contract: the contract between the Supplier and the Customer for the sale and purchase of Equipment and/or the supply of Services in accordance with these conditions, formed in accordance with clause 4.
Customer: the person, firm or company who purchases Equipment and/or Services from the Supplier.
Delivery: has the meaning given in clause 8.8.
Equipment: the equipment agreed in the Contract to be purchased by the Customer from the Supplier, including any part or parts of it.
Force Majeure Event: any act, event, omission or accident beyond the Supplier’s reasonable control, including without limitation public health restrictions, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service, transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, or default or delay on the part of suppliers, subcontractors or carriers.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including without limitation all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
OEM Terms: the applicable terms, conditions, instructions, manuals, licence terms and warranty requirements of a third-party manufacturer or original equipment manufacturer relating to the use, operation, storage, installation, maintenance, servicing or support of Equipment.
Services: any installation, demonstration, commissioning, training or other services to be supplied by the Supplier under the Contract, to the extent expressly included in the Supplier Proposal or otherwise agreed in writing between the parties.
Software: any software, firmware, operating system, application, program, code, machine-readable instruction, database or similar material installed on, embedded in, supplied with, downloaded for use with, or otherwise made available in connection with the Equipment.
Specification: the specification, requirements, scope, technical description or other particulars of the Equipment and/or Services set out in the Supplier Proposal or otherwise expressly agreed in writing between the parties.
Supplier: Createc Limited, a company incorporated in England Wales with registered company number 07293648 and whose registered company address is Unit 4 Derwent Mills Commercial Park, Cockermouth, Cumbria CA13 0HT.
Supplier Proposal: any written proposal, quotation, offer, scope, technical submission or similar document issued by the Supplier in relation to the provision of Equipment and/or Services.
Supplier Software: Software owned by or proprietary to the Supplier and supplied by the Supplier for use with the Equipment.
Third-Party Software: any Software owned by, licensed from or proprietary to a third party and supplied, embedded, installed, downloaded, made available or otherwise provided in connection with the Equipment, including any software, firmware, operating systems, applications or other software products supplied by an original equipment manufacturer.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
2. Interpretation
2.1. Clause and paragraph headings shall not affect the interpretation of the Contract.
2.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2.3. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.4. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.
2.5. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2.6. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.7. A reference to writing or written includes email.
2.8. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding those terms.
2.9. References to clauses are to the clauses of these conditions.
3. Application of Conditions
3.1. These conditions shall apply to and be incorporated in the Contract and shall prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s purchase order, confirmation of order, correspondence, specification, or implied by law, trade custom, practice or course of dealing.
3.2. No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier.
4. Basis of Sale
4.1. Any Supplier Proposal shall remain open for acceptance for the period stated in it, unless withdrawn earlier by the Supplier by written notice to the Customer.
4.2. Each order placed by the Customer, or acceptance by the Customer of any Supplier Proposal, shall constitute an offer by the Customer to purchase the Equipment and/or Services subject to these conditions.
4.3. A binding Contract shall only come into existence when the Supplier accepts the Customer’s offer made pursuant to clause 4.2. Such acceptance shall occur on the earlier of:
4.3.1. the Supplier issuing a written notice to the Customer, including an order acknowledgement, expressly accepting the Customer’s order; or
4.3.2. the Supplier delivering the Equipment, or any part of it, to the Customer.
4.4. No order which has been accepted by the Supplier may be cancelled by the Customer except with the prior written agreement of the Supplier and provided that the Customer indemnifies the Supplier in full against all losses, including without limitation loss of profit, costs, damages, charges and expenses incurred by the Supplier as a result of such cancellation.
5. Quantity and Description
5.1. The quantity and description of the Equipment and Services shall be as set out in the Supplier Proposal and the Specification.
5.2. All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for illustrative purposes only and do not form part of the Contract.
5.3. Any typographical, clerical or other error or omission in any sales literature, Supplier Proposal, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
5.4. The Supplier reserves the right, but does not assume the obligation, to make any changes to the Specification of the Equipment which are required to conform with any applicable legislation, or which do not materially adversely affect the quality or performance of the Equipment.
5.5. Where the Equipment is supplied in whole or in part by a third party, including any original equipment manufacturer, the Supplier shall be entitled to make such changes to the specification, design or components of the Equipment as are required or implemented by such third party, provided that such changes do not materially adversely affect the overall functionality of the Equipment.
5.6. The Supplier shall not be liable for any variation in the Equipment arising from compliance with third party or OEM requirements, or from the unavailability, substitution or modification of components or materials by such third parties.
5.7. Where the Supplier is not the manufacturer of the Equipment, the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier, subject to clause 15.
6. Prices
6.1. All prices shall be as stated in the Supplier Proposal and confirmed in the Supplier’s order acknowledgement, if supplied. All prices are exclusive of delivery, packing, shipping, carriage, insurance, VAT and other charges and duties, unless otherwise expressly stated in the Supplier Proposal.
6.2. The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment as has not been delivered to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier, including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Equipment requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.
7. Payment
7.1. Subject to any payment terms set out in the Supplier Proposal or otherwise agreed in writing between the parties, the Supplier shall be entitled to invoice the Customer for the price of the Equipment, or any part of it, at such times and in such amounts as are specified in the Supplier Proposal, including by reference to delivery, achievement of milestones or any other specified event determined by the Supplier or agreed between the parties.
7.2. In the absence of any such agreed terms, the Supplier may invoice the Customer for the price of the Equipment, or any part of it, on or at any time after delivery.
7.3. Where:
7.3.1. the Equipment is to be collected by the Customer; or
7.3.2. the Customer fails or refuses to take delivery of the Equipment,
the Supplier shall be entitled to invoice the Customer at any time after:
7.3.2.1. notifying the Customer that the Equipment, or relevant part of it, is ready for collection; or
7.3.2.2. notifying the Customer that delivery has been attempted but the Customer has failed or refused to accept delivery.
7.4. Unless otherwise expressly agreed in writing or specified in the Supplier Proposal, all sums invoiced by the Supplier shall be paid in full in cleared funds, without set-off, counterclaim, deduction or withholding, within thirty (30) days of the date of the Supplier’s invoice. Time for payment shall be of the essence of the Contract.
7.5. Unless otherwise expressly stated in the Supplier Proposal, all amounts payable under the Contract shall be paid in pounds sterling (£).
7.6. If the Customer fails to make any payment in full on the due date, all amounts then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
7.6.1. terminate the Contract or suspend any further deliveries of Equipment or performance of Services, whether ordered under the same contract or not, to the Customer;
7.6.2. appropriate any payment made by the Customer to such Equipment or Services supplied under the Contract or any other contract between the parties as the Supplier may determine in its sole discretion, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any time;
7.6.3. charge interest on the amount outstanding from the due date to the date of receipt by the Supplier, whether or not after judgment, at the annual rate of five per cent (5%) above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after judgment. The Supplier reserves the right to claim interest and compensation under the Late Payment of Commercial Debts (Interest) Act 1998;
7.6.4. suspend all further manufacture, delivery, installation, commissioning, training, support or warranty service until payment has been made in full;
7.6.5. make a storage charge for any undelivered Equipment at its current rates from time to time;
7.6.6. stop any Equipment in transit; and
7.6.7. exercise a general lien on all Equipment and property belonging to the Customer in the Supplier’s possession, exercisable in respect of all sums lawfully due from the Customer to the Supplier. The Supplier shall be entitled, at its sole discretion and upon giving not less than fourteen (14) days’ written notice, to sell or otherwise dispose of such Equipment or property in such manner and at such price as it determines and to apply the proceeds towards the amount outstanding.
7.7. The Supplier shall be under no obligation to sell or otherwise dispose of such Equipment or property, nor to credit the Customer with any value in respect of the same unless and until proceeds are actually realised, if at all.
7.8. All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This clause is without prejudice to any right to claim interest under the law or any right under the Contract.
7.9. The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
8. Delivery of Equipment and Acceptance
8.1. The Supplier shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in the Supplier’s order acknowledgement, but any such date is approximate only. The Supplier shall notify the Customer in writing of any anticipated delay where delivery may be delayed from the designated date.
8.2. Equipment may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.
8.3. Delivery shall be made during normal business hours, excluding bank or public holidays. The Supplier may levy additional charges for any deliveries made outside such hours at the Customer’s request.
8.4. Where the Supplier is responsible for delivery of the Equipment, the Customer shall be responsible, at its own cost, for ensuring that the delivery location is properly prepared and that safe and unobstructed access is available for delivery of the Equipment to the agreed unloading location, including the provision of all necessary access, facilities and site conditions reasonably required for delivery. The Customer shall be responsible for unloading the Equipment in accordance with clause 8.8. If the Supplier is prevented or delayed from carrying out delivery on the agreed date due to any failure by the Customer to comply with this clause, the Supplier shall be entitled to charge the Customer for any additional costs, losses or delays incurred as a result.
8.5. The Customer shall be deemed to have accepted the Equipment when the Customer has had thirty (30) days to inspect it after delivery and has not exercised in writing its right of rejection in accordance with clause 14, provided that any damage, shortage or loss in transit shall be notified in accordance with clause 8.6, and failure to comply with clause 8.6 shall constitute acceptance of the Equipment in respect of any such damage, shortage or loss.
8.6. The responsibility for any damage, shortage or loss in transit shall be as stated in the relevant delivery and risk provisions of the Contract. The Customer shall notify the Supplier, or its carrier if applicable, in writing of any damage, shortage or loss in transit within five (5) Business Days of delivery or, where the Equipment is not delivered, the proposed delivery date, and the Equipment must have been handled in accordance with the Supplier’s instructions.
8.7. Subject to the relevant delivery and risk provisions of the Contract, any remedy under clause 8.6 shall be limited, at the option of the Supplier, to the repair or replacement of any Equipment which is proven, acting reasonably, to have been lost or damaged in transit.
8.8. Delivery shall be deemed to take place:
8.8.1. where the Equipment is to be delivered by the Supplier, when the Equipment is made available by the Supplier at the agreed delivery location and prior to unloading; and
8.8.2. where the Equipment is to be collected by the Customer, when the Supplier notifies the Customer that the Equipment is ready for collection, whether or not the Customer has taken physical possession.
8.9. Unless otherwise expressly agreed in writing:
8.9.1. where the Equipment is delivered by the Supplier, the Customer shall be responsible at its own cost and risk for unloading the Equipment and for providing all necessary labour, lifting equipment, access, facilities and safe systems of work required to receive and unload the Equipment; and
8.9.2. where the Equipment is collected by the Customer, the Customer shall be responsible at its own cost and risk for loading the Equipment and for providing all necessary labour, lifting equipment and safe systems of work required to load and remove the Equipment from the Supplier’s premises.
8.10. The Supplier shall have no responsibility or liability for any loss, damage, delay or injury arising out of or in connection with the loading or unloading of the Equipment. Where the Supplier agrees in writing to assist with loading or unloading, such assistance shall be provided at the Customer’s risk and the Customer shall indemnify the Supplier against all losses, damages, costs and liabilities arising out of or in connection with such loading or unloading.
9. Risk and Property
9.1. The Equipment shall be at the risk of the Supplier until Delivery to the Customer in accordance with clause 8.8.
9.2. Ownership of the Equipment shall pass to the Customer on the later of Delivery and the time when the Supplier has received in full in cleared funds all sums due to it in respect of:
9.2.1. the Equipment; and
9.2.2. all other sums which are or which become due to the Supplier from the Customer in respect of the Equipment referred to in sub-clause 9.2.1.
9.3. Until ownership of the Equipment has passed to the Customer under clause 9.2, the Customer shall:
9.3.1. hold the Equipment on a fiduciary basis as the Supplier’s bailee;
9.3.2. store the Equipment, at no cost to the Supplier, in satisfactory conditions and separately from all the Customer’s other equipment or that of any third party, so that it remains readily identifiable as the Supplier’s property;
9.3.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
9.3.4. keep the Equipment insured on the Supplier’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of the Supplier, ensure that the Supplier’s interest in the Equipment is noted on the policy, and hold the proceeds of such insurance on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
9.4. The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in clause 20.1 arise, if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to the Supplier on the due date.
9.5. At any time prior to ownership of the Equipment passing to the Customer in accordance with clause 9.2, the Customer grants the Supplier, its agents and employees an irrevocable licence to enter any premises where the Equipment is or may be stored in order to inspect it, or, where the Customer’s right to possession has terminated, to recover and remove it.
9.6. The Supplier shall bear its own costs of any routine inspection carried out in the absence of any breach by the Customer. The Customer shall be responsible for all costs and expenses incurred by the Supplier in connection with the recovery, repossession or attempted recovery or repossession of the Equipment, and for any inspection carried out as a result of, or in connection with, any breach of the Contract by the Customer.
9.7. On termination of the Contract for any reason, the Supplier’s rights under this clause 9 shall remain in effect.
9.8. The Supplier may appropriate any payment made by the Customer to such Equipment or Services supplied under the Contract or any other contract between the parties as the Supplier may determine in its sole discretion, notwithstanding any purported appropriation by the Customer to the contrary and may make such appropriation at any time.
10. Inspection and Testing of Equipment
10.1. The Supplier shall:
10.1.1. carry out such tests and inspections of the Equipment prior to delivery as are specified in the Supplier Proposal; and
10.1.2. give the Customer reasonable advance notice of such tests to enable the Customer, at its own cost, to attend and witness them if it so wishes.
10.2. The Supplier shall have no liability for any failure by the Customer to attend such tests.
10.3. Such tests and inspections shall not constitute acceptance testing or any certification that the Equipment meets any particular performance criteria unless expressly stated in the Supplier Proposal.
10.4. The results of such tests shall, in the absence of manifest error, be final and binding.
11. Installation, Demonstration, Commissioning and Training
11.1. The Supplier shall only be responsible for installation of the Equipment and/or the provision of any demonstration, commissioning or training services where, and to the extent that, such services are expressly included in the Supplier’s written proposal.
11.2. Where such services are included, they shall be provided at the times and in the manner set out in the Supplier Proposal or otherwise agreed in writing and shall be chargeable and payable by the Customer in accordance with the Supplier Proposal, unless expressly stated otherwise in writing.
11.3. The Customer shall, at its own cost, ensure that all necessary site preparations, access, facilities, utilities, permits, consents, safe systems of work and any other requirements reasonably necessary for the performance of such services are in place prior to the Supplier’s attendance.
11.4. The Supplier shall be entitled to charge the Customer for any additional costs, losses or delays incurred as a result of any failure by the Customer to comply with its obligations under this clause or any changes requested by the Customer.
11.5. Unless otherwise expressly agreed in writing, any installation, demonstration, commissioning or training services shall be provided on a reasonable endeavours basis and shall not constitute acceptance testing, performance testing or any guarantee that the Equipment will achieve any particular performance criteria when installed or used by the Customer.
12. Software Licence
12.1. Supplier Software
12.1.1. Subject to the terms of the Contract and payment of all applicable charges and fees, the Supplier grants the Customer a non-exclusive, non-transferable and non-sublicensable licence to use the Supplier Software solely for the purpose of operating the Equipment in accordance with the Contract.
12.1.2. The Customer shall not, and shall not permit any third party to:
12.1.2.1. copy, reproduce, translate, adapt, vary or modify the Supplier Software except to the extent permitted by applicable law or required for the normal operation of the Equipment;
12.1.2.2. disassemble, decompile, reverse engineer or otherwise attempt to derive the source code, structure, algorithms or underlying content, structure or design of the Supplier Software;
12.1.2.3. create derivative works from the Supplier Software;
12.1.2.4. sub-license, assign, transfer, distribute, disclose or otherwise make the Supplier Software available to any third party except expressly permitted by clause 12.1.7 or otherwise with the Supplier’s prior written consent;
12.1.2.5. use the Supplier Software on any equipment other than the Equipment; or
12.1.2.6. remove, obscure or alter any copyright notice, legend or proprietary marking appearing in or on the Supplier Software.
12.1.3. The Customer acknowledges that the Supplier Software is licensed and not sold and that the Customer acquires no ownership interest in the Supplier Software. All intellectual property rights in the Supplier Software shall remain vested in the Supplier. Except for the licence expressly granted under this clause 12, no rights are granted to the Customer, whether expressly, impliedly or otherwise.
12.1.4. The Supplier Proposal shall specify whether the licence granted under clause 12.1.1:
12.1.4.1. is included within the price of the Equipment;
12.1.4.2. is granted for a fixed period;
12.1.4.3. is subject to separate licence fees, subscription fees, renewal fees or other recurring charges;
12.1.4.4. is subject to any other licensing restrictions, conditions or limitations.
12.1.5. Unless the Supplier Proposal expressly provides otherwise, the licence granted under clause 12.1.1 shall be included within the price of the Equipment and no separate licence fee shall be payable.
12.1.6. Where the Supplier Proposal provides for recurring licence fees, subscription fees, renewal fees or other periodic charges or fees in respect of any Supplier Software:
12.1.6.1. the Customer shall pay such charges and fees in accordance with the Contract;
12.1.6.2. the Customer’s right to use the relevant Supplier Software shall be conditional upon payment of those charges and fees; and
12.1.6.3. the Supplier may suspend access to or use of the relevant Supplier Software, to the extent technically practicable, if any such charges and fees remain unpaid after becoming due.
12.1.7. Notwithstanding clauses 12.1.1 and 12.1.2.4, the licence granted under clause 12.1.1 may be transferred together with the Equipment to a purchaser or other lawful transferee of the Equipment, provided that:
12.1.7.1. the transfer relates solely to the Equipment and the Supplier Software supplied for use with that Equipment;
12.1.7.2. the Customer ceases all use of the Supplier Software upon completion of the transfer;
12.1.7.3. the Customer does not retain any copy of the Supplier Software except to the extent required by law or for bona fide archival, compliance or record-keeping purposes; and
12.1.7.4. prior to the transfer, the transferee has provided a written undertaking to the Supplier, in a form reasonably acceptable to the Supplier, agreeing to be bound by the terms of this clause 12 as if it were the original Customer under the Contract.
Any purported transfer which does not comply with this clause 12.1.7 shall be ineffective and the licence granted under clause 12.1.1 shall automatically terminate upon such transfer.
12.2. Third Party Software
12.2.1. The Equipment may include Third-Party Software.
12.2.2. The Customer acknowledges that Third-Party Software is licensed, and not sold, by the relevant third-party owner and that the Customer’s rights to use Third-Party Software are subject to and conditional upon compliance with the applicable Third-Party Software Terms.
12.2.3. The Customer shall comply with all applicable Third-Party Software Terms and shall not do anything which would place the Supplier in breach of any such terms.
12.2.4. The Supplier does not grant any licence, right or interest in any Third-Party Software except to the extent the Supplier is expressly authorised to do so by the relevant third party.
12.2.5. The Supplier shall have no liability arising from:
12.2.5.1. the Customer’s failure to comply with any Third-Party Software Terms;
12.2.5.2. the modification, suspension, withdrawal, discontinuance or support arrangements of any Third-Party Software by the relevant third party; or
12.2.5.3. any defect, failure or incompatibility in any Third-Party Software except to the extent directly caused by the Supplier’s own acts or omissions.
12.3. General
12.3.1. The Supplier shall have no liability for any defect, failure, loss, damage, cost or expense to the extent arising from or in connection with the Customer’s breach of this clause 12 or any applicable Third-Party Software Terms.
13. Export Terms
13.1. Where the Equipment is supplied for export from the United Kingdom, the provisions of this clause 13 shall, subject to any contrary terms agreed in writing between the Customer and the Supplier, override any other provision of these conditions to the extent of any inconsistency.
13.2. Unless otherwise agreed in writing between the Customer and the Supplier, the Equipment shall be delivered according to the Incoterms® 2020 rule specified in the Supplier Proposal or other written agreement between the parties.
13.3. Payment of all amounts due to the Supplier shall be made by international bank transfer using the bank information provided in the Supplier’s order acknowledgement or invoice.
14. Warranty
14.1. The Supplier warrants to the Customer that, for a period of twelve (12) months from the date of Delivery, or such other period as may be specified in the Supplier Proposal, the Equipment shall be free from defects in materials and workmanship and shall materially conform to the relevant Specification.
14.2. Subject to the remainder of this clause 14, the Supplier shall, at its option, repair or replace any Equipment, other than consumable items, which is found to be defective as a result of faulty materials or workmanship during the applicable warranty period.
14.3. The Supplier shall not in any circumstances be liable for a breach of the warranty contained in clause 14.1 unless:
14.3.1. the Customer gives written notice of the defect to the Supplier within seven (7) days of the time when the Customer discovers or reasonably ought to have discovered the defect; and
14.3.2. after receiving the notice, the Supplier is given a reasonable opportunity of examining such Equipment and the Customer shall, if requested by the Supplier, return such Equipment to the Supplier’s place of business for examination. The Supplier shall bear the reasonable costs of such return and examination in the first instance, provided that if the Supplier determines, acting reasonably, that the Equipment is not defective or that the defect arises as a result of any act or omission of the Customer, including misuse, damage or failure to comply with the Supplier’s instructions, the Customer shall reimburse the Supplier for all costs and expenses incurred in connection with such return and examination.
14.4. The Supplier shall not in any circumstances be liable for a breach of the warranty in clause 14.1 if:
14.4.1. the Customer makes any use of Equipment in respect of which it has given written notice under clause 14.3.1;
14.4.2. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or, if there are none, good trade practice; or
14.4.3. the Customer alters or repairs the relevant Equipment without the written consent of the Supplier.
14.5. Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the original warranty period.
14.6. The Supplier shall not in any circumstances be liable for any damage, defect or failure in the Equipment to the extent that it arises from:
14.6.1. improper use of the Equipment or use outside its normal application;
14.6.2. any failure by the Customer to comply with the Supplier’s or any applicable third-party manufacturer’s or original equipment manufacturer’s instructions, manuals, specifications, operating procedures or maintenance requirements relating to the Equipment; or
14.6.3. any act, omission, misuse, neglect, modification or damage caused by or attributable to the Customer or any third party.
14.7. Where, acting reasonably, the Supplier determines that the Equipment has been contaminated by radiation, the Supplier shall not be obliged to repair the Equipment and, in such circumstances, its warranty obligations shall be limited to, at the Supplier’s option, the supply of replacement parts or components, where available and permitted, and/or the provision of guidance as to their installation, or the use of reasonable endeavours to procure the same from the relevant third party or OEM.
15. OEM Equipment and Third Party Terms
15.1. Where the Equipment, or any part of it, is manufactured or supplied by a third party, including any original equipment manufacturer, the Customer shall comply with all applicable OEM Terms.
15.2. The Customer acknowledges that any warranty, guarantee or support in respect of such Equipment may be provided by the relevant third party and is subject to the Customer’s compliance with the applicable OEM Terms. The Supplier shall use reasonable endeavours to pass through to the Customer the benefit of any such third-party warranties to the extent it is permitted to do so.
15.3. The Supplier shall have no liability for any defect, failure or reduction in performance of the Equipment to the extent that it arises from or is connected with:
15.3.1. any failure by the Customer to comply with the OEM Terms; or
15.3.2. any act or omission of the Customer which results in any applicable third-party warranty being invalidated, voided or unenforceable.
15.4. Compliance by the Customer with all applicable OEM Terms shall be a condition of any warranty or other obligation of the Supplier in respect of the Equipment, and the Supplier shall have no liability under clause 14 to the extent that such compliance has not been maintained.
15.5. The Customer shall indemnify and keep indemnified the Supplier against all losses, damages, costs and expenses incurred by the Supplier arising out of or in connection with any breach by the Customer of the OEM Terms.
15.6. To the extent that any warranty, guarantee or support in respect of the Equipment is provided by a third party, including any OEM, the Supplier shall have no liability to the Customer for any defect, failure or non-performance of the Equipment except to the extent that the Supplier is able to recover the same under such third party warranty. The Supplier shall not be liable for any defect, failure or non-performance which is outside the scope of, or not covered by, the applicable third-party warranty, or where such warranty is declined, invalidated or not honoured for any reason not attributable to the Supplier.
15.7. The Supplier’s sole obligation in respect of such Equipment shall be, at its option, to use reasonable endeavours to enforce or procure the benefit of any applicable third-party warranty on behalf of the Customer.
16. Remedies
16.1. The Supplier shall not be liable for any non-delivery of Equipment, even if caused by the Supplier’s negligence, unless the Customer notifies the Supplier in writing of the failure to deliver within seven (7) days after the scheduled delivery date.
16.2. Any liability of the Supplier for non-delivery of the Equipment shall in all circumstances be limited to replacing the Equipment within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Equipment.
16.3. If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, other than by reason of a Force Majeure Event under clause 21, the Customer shall in all circumstances be liable to pay to the Supplier all reasonable costs, charges or losses sustained by it as a result, subject to the Supplier notifying the Customer in writing of any such claim.
16.4. In the event of any claim by the Customer under the warranty given in clause 14, the Customer shall notify the Supplier in writing of the alleged defect. The Supplier shall have the option of testing or inspecting the Equipment at its current location or moving it to the Supplier’s premises, or those of its agent or sub-contractor, at the cost of the Supplier. If the Customer’s claim is subsequently found by the Supplier, acting reasonably, to be outside the scope or duration of the warranty in clause 14, the costs of transportation of the Equipment, investigation and repair shall be borne by the Customer.
17. Limitation of Liability
17.1. The following provisions set out the entire financial liability of the Supplier and the Customer, including without limitation any liability for the acts or omissions of their respective employees, agents and sub-contractors, to the other party in respect of:
17.1.1. any breach of the Contract howsoever arising; and
17.1.2. any representation, misrepresentation, whether innocent or negligent, statement or tortious act or omission, including without limitation negligence, arising out of or in connection with the Contract.
17.2. All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
17.3. Nothing in these conditions excludes or limits the liability of either party for:
17.3.1. death or personal injury caused by its negligence; or
17.3.2. fraud or fraudulent misrepresentation.
17.4. Subject to clauses 17.2 and 17.3:
17.4.1. neither party shall in any circumstances be liable, whether in contract, tort, including negligence, misrepresentation, whether innocent or negligent, restitution or otherwise, for:
17.4.1.1. loss of profits;
17.4.1.2. loss of business;
17.4.1.3. depletion of goodwill or similar losses;
17.4.1.4. loss of anticipated savings;
17.4.1.5. loss of goods;
17.4.1.6. loss of contract;
17.4.1.7. loss of use;
17.4.1.8. loss or corruption of data or information;
17.4.1.9. any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
17.4.2. Subject to clauses 17.2 and 17.3, the Supplier’s aggregate liability to the Customer arising out of or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution, breach of statutory duty or otherwise, shall not exceed the total sums actually paid the Customer under the Contract.
18. Intellectual Property Rights
18.1. If the Supplier manufactures the Equipment, or applies any process to it, in accordance with a specification submitted or prepared by the Customer or any other information provided by the Customer, the Customer shall indemnify and keep indemnified the Supplier against all losses, damages, costs, claims, demands, liabilities and expenses, including without limitation loss of profit, loss of reputation, interest, penalties and legal and other professional costs and expenses, awarded against or incurred by the Supplier in connection with, or paid or agreed to be paid by the Supplier in settlement of, any claim for infringement of any third party Intellectual Property Rights which results from the Supplier’s use of the Customer’s specification or such other information.
18.2. The Customer acknowledges that all Intellectual Property Rights in or relating to the Equipment, including any Software, are and shall remain vested in the Supplier or, where applicable, the relevant third-party owner of such rights. Nothing in the Contract shall operate to transfer any Intellectual Property Rights to the Customer unless expressly agreed in writing and signed by the Supplier.
18.3. The Customer shall not acquire any rights in such Intellectual Property Rights other than the limited rights expressly granted under the Contract.
18.4. The Supplier shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Supplier.
18.5. The Customer shall not, and shall ensure that its employees, agents, contractors and any other person acting on its behalf do not, access or use the Equipment, Software or any related materials in any manner which infringes the Intellectual Property Rights of the Supplier or any relevant third party, or which exceeds the rights expressly granted under the Contract, including any attempt to access, use or exploit the Equipment, Software or such Intellectual Property Rights beyond the scope of the permitted use.
18.6. In relation to the Software:
18.6.1. the Customer acknowledges that it is granted only a limited right to use the Software in accordance with the Contract and does not acquire any ownership of the Software or any Intellectual Property Rights in it, regardless of the manner in which the Software is supplied, including where it is embedded, installed, downloaded or otherwise made available;
18.6.2. nothing in the Contract shall operate to assign or transfer any Intellectual Property Rights in the Software or any related documentation to the Customer; and
18.6.3. where the Software is owned or supplied by a third party, including any original equipment manufacturer, the Customer shall comply with all applicable licence terms, conditions of use and other requirements imposed by such third party, and acknowledges that its rights to use the Software are subject to and conditional upon such compliance.
19. Confidentiality
19.1. If the parties have entered into a separate written non-disclosure agreement covering the subject matter of the Contract, the terms of that agreement shall prevail, and this clause shall not apply. In the absence of such an agreement, the provisions of this clause shall apply.
19.2. For the purposes of the Contract, “Confidential Information” means all information, whether in written, oral, electronic or any other form, disclosed by or on behalf of the Supplier to the Customer in connection with the Contract, including without limitation technical data, know-how, designs, drawings, specifications, Software, trade secrets, business plans, financial information, pricing, customer lists, commercial information, and any information which by its nature or the circumstances of its disclosure could reasonably be regarded as confidential, together with any copies, notes, analyses or other derivative works thereof.
19.3. The Customer shall:
19.3.1. keep all Confidential Information strictly confidential and not disclose it to any third party without the Supplier’s prior written consent;
19.3.2. use the Confidential Information solely for the purpose of receiving and using the Equipment and/or Services in accordance with the Contract;
19.3.3. restrict disclosure of Confidential Information to those of its employees, officers, representatives, subcontractors or advisers who need to know it for the purposes of the Contract, and ensure that such persons are subject to obligations of confidentiality no less strict than those set out in this clause;
19.3.4. take all reasonable steps to protect the Confidential Information against unauthorised access, copying, use or disclosure; and
19.3.5. not use the Confidential Information for the purpose of developing, manufacturing or procuring any competing products or services or otherwise exploiting the Confidential Information for its own commercial benefit beyond the scope of the Contract.
19.4. The obligations in this clause shall not apply to information which the Customer can demonstrate:
19.4.1. is or becomes public knowledge other than through breach of the Contract;
19.4.2. is lawfully received by the Customer from a third party free of any obligation of confidence;
19.4.3. is already in the Customer’s lawful possession without restriction before disclosure by the Supplier; or
19.4.4. is independently developed by the Customer without use of or reference to the Confidential Information.
19.5. If the Customer is required by law, regulation or a competent authority to disclose any Confidential Information, it shall, to the extent legally permitted, give the Supplier as much notice as reasonably practicable and shall co-operate with the Supplier regarding the scope and timing of such disclosure.
19.6. Upon termination or expiry of the Contract, or earlier upon the Supplier’s request, the Customer shall promptly return to the Supplier or, to the extent technically practicable, securely destroy all Confidential Information and all copies thereof, save that the Customer may retain one copy to the extent required for legal or regulatory compliance purposes, subject always to the continuing obligations of confidentiality set out in this clause.
19.7. The obligations of confidentiality under this clause shall continue for a period of five (5) years following termination or expiry of the Contract, save that any Confidential Information which constitutes a trade secret shall be kept confidential for so long as it remains a trade secret.
19.8. The Customer acknowledges that damages alone may not be an adequate remedy for any breach of this clause 19 and that the Supplier shall be entitled to seek injunctive or other equitable relief for any actual or threatened breach, in addition to any other remedies available at law or in equity.
20. Termination
20.1. Without prejudice to any other right or remedy available to the Supplier, the Supplier may terminate the Contract or suspend any further deliveries or performance under the Contract without liability to the Customer and, if the Equipment has been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:
20.1.1. the Customer commits a material breach of the Contract which is not capable of remedy;
20.1.2. the Customer commits a material breach of the Contract which is capable of remedy and fails to remedy that breach within ten (10) Business Days of being given written notice to do so;
20.1.3. the Customer fails to make any payment due under the Contract on the due date;
20.1.4. the ability of the Customer to accept delivery of the Equipment is delayed, hindered or prevented;
20.1.5. an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Customer;
20.1.6. an order is made for the appointment of an administrator to manage the affairs, business and property of the Customer, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder, as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986;
20.1.7. a receiver is appointed of any of the Customer’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Customer, or if any other person takes possession of or sells the Customer’s assets;
20.1.8. the Customer makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt;
20.1.9. the Customer ceases, or threatens to cease, to trade;
20.1.10. the Customer takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of debt; or
20.1.11. in the Supplier’s reasonable opinion, the Customer’s financial position deteriorates to such an extent that the Customer’s ability to perform its obligations under the Contract is placed in jeopardy.
20.2. The Supplier may terminate the Contract at any time for its convenience by giving not less than thirty (30) days’ written notice to the Customer.
20.3. Upon such termination, the Customer shall pay to the Supplier all sums due and payable under the Contract in respect of Equipment delivered and Services performed up to the date of termination, together with all costs and expenses reasonably incurred by the Supplier as a result of such termination, including without limitation costs of materials, manufacture, procurement, demobilisation and any cancellation or termination charges incurred by the Supplier.
20.4. The Customer may terminate the Contract by written notice to the Supplier only where the Supplier commits a material breach of the Contract which:
20.4.1. is not capable of remedy; or
20.4.2. is capable of remedy but is not remedied within thirty (30) days of written notice.
20.5. Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination.
21. Force Majeure
21.1. The Supplier shall not be liable to the Customer for any failure or delay in performing, or for any inability to perform, any of its obligations under the Contract to the extent that such failure, delay or inability results from a Force Majeure Event.
21.2. If a Force Majeure Event occurs, the Supplier may, at its option and by written notice to the Customer, defer the date of delivery, suspend performance of any of its obligations, cancel the Contract in whole or in part, or reduce the amount of Equipment to be supplied, and the Supplier shall have no liability to the Customer as a result.
22. General
22.1. Waiver
22.1.1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
22.2. Severance
22.2.1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity or enforceability of the rest of the Contract. If any provision or part-provision is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22.3. Entire Agreement
22.3.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.3.2. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty that is not set out in the Contract. Nothing in this clause shall limit or exclude any liability for fraud.
22.4. Assignment
22.4.1. The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the consent of the Customer.
22.4.2. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
22.5. Third Party Rights
22.5.1. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
22.5.2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
22.6. Notices
22.6.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
22.6.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office, if a company, or its principal place of business, in any other case; or
22.6.1.2. sent by email to the address specified for that purpose by the recipient party.
22.6.2. Any notice or other communication shall be deemed to have been received:
22.6.2.1. if delivered by hand, at the time the notice is left at the proper address;
22.6.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; and
22.6.2.3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
22.6.3. In this clause, business hours mean 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
22.6.4. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22.7. Governing Law and Jurisdiction
22.7.1. The Contract, and any dispute or claim, including non-contractual disputes or claims, arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
22.7.2. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim, including non-contractual disputes or claims, arising out of or in connection with the Contract or its subject matter or formation.