DM Electronic Assembly Ltd [trading as DM Electronic Assembly Ltd (registered
number 15296352 whose registered office is at 71-75, Shelton Street, Covent
Garden, London, United Kingdom, WC2H 9JQ (“we” or “us”)
STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS [AND
SERVICES]
Your attention is particularly drawn to the exclusions and limitations of liability
at Condition 9.
1. DEFINITIONS AND INTERPRETATION
In these Conditions:
1.1 the following words and expressions have the following meanings and, in
addition, any words and expressions defined in any Condition will have the same
meaning when used in any other Condition:
[“Business Day” a day that is not a Saturday, Sunday or public or
bank holiday in England and/or Wales]
[“Charges” EITHER
the charges for the Services set out in our price
list in force on the date on which the Order is
[issued by you]/[received by us]
OR
the charges for the Services set out in our price
list in force on the date on which the Order
Acknowledgement is issued by us
OR
the charges for the Services set out in our
quotation
[as those charges may be varied from time to
time in accordance with Condition 6.4]]
“Liability” liability arising out of or in connection with the
Contract, whether in contract, tort,
misrepresentation, restitution, under statute or
otherwise, including any liability [under an
indemnity contained in the Contract and/or]
arising from a breach of, or a failure to perform
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or defect or delay in performance of, any of a
party’s obligations under the Contract and/or
any defect in any of the Goods, in each case
howsoever caused including if caused by
negligence [or if caused by a deliberate breach
by that party]
“Order” your order for the supply of goods [and services]
by us, [set out in [our standard order
form]/[your acceptance of our quotation]/[your
order form]]
“Order Acknowledgement” our [written] acceptance of the Order [set out in
[our standard order acknowledgement form]]
“Prices” EITHER
the prices for the Goods set out in our price list
in force on the date on which the Order is
[issued by you]/[received by us]
OR
the prices for the Goods set out in our price list
in force on the date on which the Order
Acknowledgement is issued by us
OR
the prices for the Goods set out in our price list
in force on the date of Delivery
OR
the prices for the Goods set out in our quotation
[as those prices may be varied from time to time
in accordance with Condition 6.4]
[“Property Liability” OPTION 1
Liability arising from or for loss or destruction of
or damage to tangible property [(excluding
data)]
OPTION 2
Liability for loss or destruction of or damage to
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tangible property [(excluding data)], but not
Liability arising from any such loss, destruction
or damage]
[“Specification” the written technical specification for the Goods
set out in the order acknowledgement]
“you” the person named as the customer in the Order
1.2 all headings are for ease of reference only and will not affect the construction or
interpretation of these Conditions;
1.3 references to a “person” include any individual, body corporate, association,
partnership, firm, trust, organisation, joint venture, government, local or
municipal authority, governmental or supra-governmental agency or
department, state or agency of state or any other entity (in each case whether
or not having separate legal personality);
1.4 references to any statute or statutory provision will include any subordinate
legislation made under it and will be construed as references to such statute,
statutory provision and/or subordinate legislation as modified, amended,
extended, consolidated, re-enacted and/or replaced and in force from time to
time; [and]
1.5 any words following the words “include”, “includes”, “including”, “in particular” or
any similar words or expressions will be construed without limitation and
accordingly will not limit the meaning of the words preceding them; [and]
1.6 [the rule known as the ejusdem generis rule will not apply and accordingly the
meaning of general words introduced by the word “other” or a similar word or
expression will not be restricted by reason of the fact that they are preceded by
words indicating a particular class of acts, matters or things;] [and]
1.7 [any reference to:
1.7.1 time of day is to London time;
1.7.2 a day is to a period of 24 hours running from midnight to midnight;]
[and
1.8 [an obligation on a party to procure or ensure the performance or standing of
another person will be construed as a primary obligation of that party].
2. CONTRACT FORMATION
2.1 [Any quotation given by us will be valid for a period of 30 days from and
including its date, and will constitute an invitation to treat and not an offer,
unless otherwise specified on our quote or order acknowledgement.]
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2.2 The Order constitutes an offer by you to purchase the goods set out in the Order
(“Goods”) [and the services set out in the Order (“Services”)] from us on
these Conditions. A contract for the supply of Goods [and Services] by us to you
on these Conditions will be formed when we accept the Order by issuing an
Order Acknowledgement to you. For the avoidance of doubt, we are under no
obligation to accept the Order.
2.3 These Conditions are the only terms and conditions on which we will supply
goods [and services] to you and will apply to the exclusion of all other terms and
conditions including any terms and conditions which you purport to apply under
any purchase order, confirmation of order or similar document (whether or not
such document is referred to in the Contract) and any terms and conditions
which may otherwise be implied by trade, custom, practice or course of dealing.
2.4 [Delivery [or commencement of the performance of the Services] will be deemed
conclusive evidence of your acceptance of these Conditions.]
2.5 [We will be entitled, at our discretion, to deliver Goods by separate instalments.
We will be entitled to invoice the Price for each instalment separately in
accordance with Condition 6.5. Each instalment will be deemed to be a
separate contract and no cancellation or termination of any one contract relating
to an instalment will give you the right to cancel or terminate any other
contract.]
3. THE GOODS
3.1 [We will be entitled at any time to:
3.1.1 vary the design, finish or [specification]/[Specification] of Goods
[and/or their packaging]; and/or
3.1.2 substitute any materials or parts which are used in Goods and which
are unavailable for any reason with alternative materials or parts
to the extent that:
3.1.3 this does not materially affect their quality or performance; or
3.1.4 this is necessary to comply with any health and safety or other legal
requirements.
[We will [use reasonable endeavours to] give you [prior]/[not less than [7 days]
written notice of any such variation or substitution.]]
3.2 [With the exception of the Specification, all]/[All] samples, drawings, descriptive
and illustrative matter and advertising issued or published by us [(or the
manufacturer of the Goods)] whether in catalogues, brochures, websites, other
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promotional material or otherwise are for the sole purpose of giving an
approximate idea of the relevant Good.
3.3 The Contract is not a sale by sample.
4. DELIVERY
4.1 OPTION 1 (Collection by Customer)
You will collect the Goods from our premises and will load them onto the
collecting vehicle [during the hours of [9:00 am to 5:00 pm] and] within a period
of [7 Business Days] from [and including] the day on which we inform you that
the Goods are available for collection. Delivery of the Goods (“Delivery”) will
be deemed to occur at the time of collection (prior to loading) or, if earlier, on
expiry of the period for collection specified in this Condition 4.1.
OPTION 2 (Delivery by Supplier to a UK address. This option may be
used where the Supplier is delivering to the Customer’s premises or
where the Supplier is delivering to a carrier appointed by the Customer.)
We will deliver the Goods to the address specified in the [Order]/[Order
Acknowledgement] and [we]/[you] will be responsible for off-loading the Goods
from the delivery vehicle. We will inform you [at least 1 days] in advance of the
date on which the Goods will be delivered. Delivery of the Goods (“Delivery”)
will be deemed to occur when [they arrive at the delivery address]/[they have
been off-loaded at the delivery address].
OPTION 3 (Incoterms - International supplies where neither option 1
nor option 2 applies)
The Goods will be delivered [INSERT TERM, EG CIF. REMEMBER THAT FOR SOME
INCOTERMS YOU ALSO NEED TO SPECIFY A PLACE NAME] (as such term is
defined in Incoterms 2010). Delivery of the Goods (“Delivery”) will be deemed
to occur when we complete our delivery obligations under that Incoterm. To the
extent only of any conflict or inconsistency between [REPEAT INCOTERM] (as
such term is defined in Incoterms 2010) and these Conditions, Incoterms 2010
will take precedence.
4.2 We will use reasonable endeavours to [make available for collection]/[deliver]
Goods on the estimated delivery date set out in the [Order Acknowledgement],
but time for delivery of the Goods will not be of the essence of the Contract.
Any delivery dates given by us are estimates only [save for the dates which we
inform you of under Condition 4.1].
4.3 If:
4.3.1 the Goods have not been [made available for collection]/[delivered]
under Condition 4.1 within 30 days from [and including]/[but
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excluding] the estimated delivery date set out in the [Order
Acknowledgement]; and
4.3.2 we fail to [make those Goods available for collection]/[deliver those
Goods] under Condition 4.1 within 30 days of a written notice
referring to this Condition 4.3 and setting out your rights under it
being given by you,
you will be entitled to cancel the Contract by giving written notice to that effect
to us. If you exercise your right of cancellation we will refund to you any monies
which you have already paid to us under the Contract and you will not be
required to pay any further monies to us under the Contract. Subject to
Condition 9.5, our sole Liability for our failure to deliver the Goods will be
limited to the price (exclusive of value added tax) paid by you in obtaining
replacement goods of equivalent description and quality in the cheapest market
available, less the Price of the Goods.
4.4 Save as provided in Condition 4.3, you will not be entitled to cancel the
Contract or to reject any Goods by reason of a delay in delivery or failure to
deliver.
4.5 If Delivery occurs but you fail to [collect]/[accept delivery of] the Goods we will
be entitled to:
4.5.1 store or arrange for storage of the Goods until you [collect]/[accept
delivery of] them or they are disposed of under Condition 4.5.2 (as
applicable) [and to take such action as we consider necessary to
attempt to re-deliver the Goods to the address specified in the
[Order]/[Order Acknowledgement]];
4.5.2 [following written notice to you,] treat the Contract as repudiated by
you and dispose of the Goods in any way we see fit, including by sale
to another person. If we sell any of the Goods under this Condition
4.5.2 at a price which is less than the relevant Price [plus any
relevant [packaging,] [insurance,] [carriage] [and] [delivery] costs],
we will be entitled to charge you for the shortfall; and
4.5.3 charge you for all costs and expenses which we incur under
Conditions 4.5.1 and 4.5.2.
5. PASSING OF RISK AND RETENTION OF TITLE
5.1 Risk of damage to or loss of the Goods will pass to you on Delivery.
5.2 Legal and beneficial ownership of the Goods will not pass to you until we have
received in full in cleared funds:
5.2.1 all sums due to us in respect of the Goods; and
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5.2.2 all other sums which are or which become due to us from you on any
account whatsoever.
5.3 Until ownership of the Goods has passed to you, you will:
5.3.1 hold the Goods on a fiduciary basis as our bailee;
5.3.2 store the Goods (at no cost to us) separately from all other goods in
such a way that they remain readily identifiable as our property;
5.3.3 [not destroy, deface or obscure any identifying mark or packaging on
or relating to the Goods;]
5.3.4 [not, without our prior written consent, annex any Goods to your
premises;]
5.3.5 maintain the Goods in satisfactory condition; and
5.3.6 [keep the Goods insured for their full price against damage or loss on
an “all risks” basis with insurers approved by us, (acting reasonably),
[ensure that our interest in them is noted on the relevant insurance
policy and that we are named as loss payee in respect of the Goods],
whenever requested by us produce a copy of the policy of insurance in
respect of the Goods to us, do nothing and not omit to do anything
which in consequence permits any insurer to refuse to indemnify you in
full in accordance with the terms of any insurance policy maintained in
respect of the Goods in respect of any claim made under any such
insurance policy and
EITHER
ensure that any insurance proceeds received by you under the relevant
policy are applied to repairing damaged Goods or, in the event that
they are not so applied, hold such proceeds on trust for us.
OR
procure that any insurance proceeds received in respect of lost or
damaged Goods are paid to us, to the extent required to satisfy your
indebtedness to us.]
5.4 You may use and resell the Goods in the ordinary course of your business before
ownership has passed to you, provided that you will be permitted to make sales
solely on the following conditions:
5.4.1 any sale will be effected at full market value;
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5.4.2 any sale will be a sale of your property on your own behalf and you will
deal as principal when making such a sale;
5.4.3 [you will hold such part of the proceeds of sale as represents the
amount owed by you to us in trust for us and will account to us
accordingly;] and
5.4.4 [you will include a retention of title clause in the form of this
Condition 5 in your sale contract with your customer].
5.5 Your right to possession, use and resale of the Goods will terminate immediately
if, before ownership of the Goods passes to you in accordance with Condition
5.2:
5.5.1 you have a receiver, administrator or provisional liquidator appointed;
are subject to a notice of intention to appoint an administrator; pass a
resolution for your winding-up [(save for the purpose of a solvent
restructuring [previously approved in writing by us])]; have a winding
up order made by a court in respect of you; enter into any composition
or arrangement with creditors [(other than relating to a solvent
restructuring [previously approved in writing by us])]; [or] cease to
carry on business[; or have any steps or actions taken in connection
with any of these procedures];
5.5.2 [we give you written notice that we have any [reasonable] concerns
regarding your financial standing;]
5.5.3 [you [fail to pay any sum due to us [under the Contract] on or before
the due date]/[are in breach of any of your obligations under the
Contract [or any other contract between us and you]];]
5.5.4 [you encumber or in any way charge any of the Goods;] [or]
5.5.5 [the Contract [expires or] terminates for any reason].
5.6 We will be entitled to recover payment for the Goods (including by way of an
action for the price) notwithstanding that ownership of any of the Goods has not
passed from us.
5.7 You grant, and will procure that the owner of any relevant third party premises
grants, us, our agents, employees and sub-contractors an irrevocable licence at
any time to enter any premises where the Goods are or may be stored in order
to inspect them, or, where your right to possession, use and resale has
terminated, to recover them.
5.8 [Where we are unable to determine whether any goods are the Goods in respect
of which your right to possession, use and resale has terminated, we will be
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deemed to have sold all goods of the kind sold by us to you in the order in which
they were invoiced to you.]
5.9 If your right to possession, use and resale of the Goods terminates in accordance
with Condition 5.5, we will be entitled to issue you with a credit note for all or
any part of the price of the Goods together with value added tax thereon.
5.10 Our rights contained in this Condition 5 will survive expiry or termination of the
Contract however arising.
6. PRICE AND PAYMENT
6.1 You will pay the Prices [and Charges] to us in accordance with this Condition 6.
6.2 The Prices [and Charges] are exclusive of [packaging,] [insurance,] [carriage]
[and] [delivery] costs [and those [reasonable] [travel, accommodation and
subsistence] expenses [reasonably and properly] incurred by us from time to
time in performing the Services (“Expenses”)] which will be payable by you in
addition to the Prices [and Charges].
6.3 Any sum payable under the Contract is exclusive of value added tax (and any
other similar or equivalent taxes, duties, fees and levies imposed from time to
time by any government or other authority) which will be payable in addition to
that sum in the manner and at the rate prescribed by law from time to time.
6.4 [We will be entitled to vary the Prices [and/or Charges] at any time by giving
written notice to you to reflect any variation in the cost of supplying the Goods
[and/or Services] which arises as a consequence of [any change in law]/[any
variation in your requirements for the Goods [and/or Services]]/[any information
provided by you being inaccurate or incomplete][or][any failure or delay by you
in providing information].]
6.5 We will [be entitled to] invoice you for the Prices for the Goods and any
[packaging,] [insurance,] [carriage] [and] [delivery] costs payable by you in
addition to the Prices [and the Charges [and any Expenses payable by you in
addition to the Charges]] following [us issuing the Order
Acknowledgement]/[Delivery].
6.6 [We will [be entitled to] invoice you for the Charges for the Services [and any
Expenses payable by you in addition to the Charges] following [commencement
of] performance of the Services].]
6.7 Each invoice will be payable by you [within [INSERT NUMBER, EG 14/30/60]
[days]/[Business Days] following the date on which the invoice is]/[by the end of
the month [following the month] in which the invoice is] issued. All payments
will be made in pounds sterling in cleared funds.
6.8 [Notwithstanding any purported contrary appropriation by you, we will be
entitled, by giving written notice to you, to appropriate any payment by you to
any invoice issued by us.]
6.9 If any sum payable under the Contract is not paid on or before the due date for
payment we will be entitled to charge you interest on that sum at the rate set
out in the Late Payment of Commercial Debts (Interest) Act 1998 [INSERT
NUMBER]% from the due date until the date of payment (whether before or after
judgment), such interest to accrue on a daily basis [and be compounded
[Quarterly]].
6.10 [If you fail to make any payment due to us under the Contract [or any other
contract between you and us] [on or before]/[within [INSERT TIMESCALE, EG
SEVEN DAYS] after] the due date we will be entitled to withhold further
deliveries of Goods [and to suspend provision of the Services] until [payment of
all overdue sums]/[that payment] has been made.]
6.11 [If you fail to make any payment due to us under the Contract on or before the
due date [or if we have any [reasonable] concerns regarding your financial
standing] we will be entitled, by giving written notice to that effect to you, to
issue invoices prior to Goods being [made available for collection]/[delivered]
and we will not be required to [make available for collection]/[deliver] the Goods
until the relevant invoice has been paid in full.]]
6.12 If you fail to make any payment due to us under the Contract on or before the
due date or if any of the events or circumstances set out in Condition[s] Error!
Reference source not found. [or 5.5.2] occur all invoices issued will immediately
become due and payable.
6.13 Save as otherwise expressly provided in these Conditions or required by law, all
payments to be made by you to us under the Contract will be made in full and
without any set-off or any deduction or withholding including on account of any
counter-claim.
6.14 Following [expiry or] termination of the Contract:
6.14.1 we will be entitled to invoice all Prices [and Charges] and any
[packaging,] [insurance,] [carriage] [and] [delivery] costs [and
Expenses] incurred which have not yet been invoiced; and
6.14.2 all invoices (including any invoices issued under Condition 6.14.1)
will become immediately due and payable by you.
7. WARRANTY
7.1 We warrant to you that during the period starting on Delivery and ending on [the
earlier of the time at which the relevant Good is incorporated into another
product or used in a manufacturing process or] expiry of a period of [NUMBER]11
[months]/[years] from and including the date of Delivery (the “Warranty
Period”) the Goods will:
7.1.1 [[subject to Condition 3.1,] conform to the Specification [in all
material respects];] [and]
7.1.2 [be free from material defects in design, materials or workmanship.]
7.2 If, at any time during the Warranty Period, you become aware of a breach of
[either of] the warrant[y]/[ies] at Condition 7.1, you will:
7.2.1 give written notice of the breach to us, such notice to be given [within
[NUMBER] days after you become aware of the breach and] prior to
expiry of the Warranty Period;
7.2.2 at our option either return to us [(at [our]/[your] cost)] the relevant
Good or permit us or our agent or sub-contractor to inspect it at your
premises; and
7.2.3 provide us with all information and assistance which we may
[reasonably] require to investigate the alleged breach.
7.3 Subject to Condition 9.5, our only Liability for breach of [either of] the
warrant[y]/[ies] at Condition 7.1 will be, at our option, to repair or replace the
relevant Good [or to reduce the Price of the relevant Good by a sum which is
equitable in the circumstances].
7.4 Your only remedy for breach of the obligation at Condition 7.3 will be in
damages.
7.5 Subject to Condition 9.5, we will not have any Liability for a breach of [a]/[the]
warranty at Condition 7.1 if [or to the extent that]:
7.5.1 you do not comply with your obligations at Condition 7.2 in respect of
the breach;
7.5.2 the relevant defect was caused by damage in transit after Delivery;
7.5.3 [the relevant defect was caused by fair wear and tear;]
7.5.4 [the relevant defect was drawn to your attention before formation of
the Contract or the Good was examined by you before formation of the
Contract and the examination ought to have revealed the defect;]
7.5.5 the relevant defect was caused or exacerbated by improper use,
handling, alteration, installation, repair, maintenance, storage or
failure to comply with instructions provided by us [or the
manufacturer]; or12
7.5.6 you make further use of the relevant Good after discovering the
relevant breach.
The warrant[y]/[ies] under Condition 7.1 will apply to any Goods which are
repaired or replaced under Condition 7.3 for the remainder of the original
Warranty Period.
7.6 Subject to Condition 9.5, all warranties, conditions and other terms implied by
law (whether by statute, common law or otherwise) are excluded from the
Contract.
8. [SERVICES
8.1 We warrant to you that we will provide the Services with reasonable care and
skill.
8.2 We will use reasonable endeavours to provide the Services on the estimated
performance date set out in the [Order Acknowledgement], but time for
provision of the Services will not be of the essence of the Contract. Any
performance dates given by us are estimates only.]
9. EXCLUSIONS AND LIMITATIONS OF LIABILITY
Your attention is particularly drawn to this Condition.
9.1 Subject to Condition Error! Reference source not found., our entire Liability for
any non-delivery of Goods or failure to deliver the Goods in accordance with the
timescales set out or referred to in the Contract will be as set out in
Condition 4.3 and we will have no other Liability for any such non-delivery or
failure to deliver. [For the avoidance of doubt such Liability will be subject to
Condition 9.2 and will be taken into account in calculating whether the financial
limit[s] in Condition 9.2 [has]/[have] been reached.]
9.2 EITHER (One total aggregate cap,)
Subject to Condition Error! Reference source not found. , our maximum
aggregate Liability will be limited to £[ ].
OR (One cap for Property Liability and one cap for all other Liability)
9.2.1 Subject to Condition Error! Reference source not found., our
maximum aggregate Property Liability will be limited to £[ ].
9.2.2 Subject to Condition Error! Reference source not found., our
maximum aggregate Liability, but excluding any Property Liability, will
be limited to £[ ].
9.3 We will have no Liability to you for any:13
9.3.1 loss of profit (whether direct, indirect or consequential);
9.3.2 loss of revenue, loss of production or loss of business (in each case
whether direct, indirect or consequential);
9.3.3 loss of goodwill, loss of reputation or loss of opportunity (in each case
whether direct, indirect or consequential);
9.3.4 loss of anticipated savings or loss of margin (in each case whether
direct, indirect or consequential);
9.3.5 liability that you have to third parties (whether direct, indirect or
consequential); or
9.3.6 indirect, consequential or special loss,
subject always to Condition Error! Reference source not found..
9.4 We will not be in breach of the Contract or otherwise liable to you for any failure
to perform or delay in performing our obligations under the Contract to the
extent that such failure or delay is due to any event or circumstance beyond our
reasonable control.
9.5 Nothing in the Contract will operate to exclude or restrict one party’s Liability (if
any) to the other:
9.5.1 for death or personal injury resulting from its negligence or the
negligence of a person for whom it is vicariously liable (negligence
being as defined in Section 1(1) Unfair Contract Terms Act 1977);
9.5.2 for its fraud or fraudulent misrepresentation or fraud or fraudulent
misrepresentation by a person for whom it is vicariously liable;
9.5.3 for breach of its obligations arising under section 12 Sale of Goods Act
1979;
9.5.4 [for breach of its obligations arising under Section 2 Supply of Goods
and Services Act 1982;]
9.5.5 [for breach of its obligations arising under Section 8 Supply of Goods
(Implied Terms) Act 1973;]
9.5.6 arising under Section 2(3) Consumer Protection Act 1987; [or]
9.5.7 [for a deliberate breach of the Contract by that party; [or]]
9.5.8 [for any matter for which it is not permitted by law to exclude or limit,
or to attempt to exclude or limit, its liability.]14
9.6 Any of our Liability which falls within Condition 9.5 will not be taken into
account in assessing whether [any of] the financial limit[s] in Condition 9.2 has
been reached.
9.7 Nothing in this Condition 9 will prevent or restrict the right of a party to seek
injunctive relief or specific performance or other discretionary remedies of the
court.
9.8 [Each of our employees, agents and sub-contractors will be entitled to enforce all
the terms of this Condition 9 subject to and in accordance with the Contracts
(Rights of Third Parties) Act 1999 and the terms of the Contract. Accordingly
and for the avoidance of doubt the financial limits on liability set out in
Condition 9 are the maximum liability of us, our employees, agents and sub-
contractors in aggregate. The parties may vary or rescind the Contract without
the consent of our employees, agents or sub-contractors.]
10. [YOUR OBLIGATIONS
10.1 You will:
10.1.1 [provide us with all such information and assistance as we may
[reasonably] require from time to time to perform our obligations
under the Contract];
10.1.2 not [re-package the Goods or] remove or alter any trade marks,
[patent numbers,] [serial numbers] or other identifying marks on the
Goods or their packaging [or add any other trade marks, [patent
numbers,] [serial numbers] or other identifying marks to the Goods or
their packaging];
10.1.3 [not alter or modify the Goods in any way;]
10.1.4 [obtain such licences, permits, consents and authorisations as may be
required for [INSERT DETAILS]]; and
10.1.5 [[return packaging to]/[make packaging available for collection by] us,
as required by us].
10.2 You will comply with our instructions in connection with any product recall
initiated by us involving the Goods (or any of them).
10.3 Notwithstanding any other term of the Contract we will not be in breach of the
Contract to the extent our failure to perform or delay or defect in performance of
its obligations under the Contract arises as a result of:
10.3.1 any breach by you of your obligations contained in the Contract
[provided that we use our reasonable endeavours to perform our
obligations notwithstanding the breach by you];15
10.3.2 us relying on any incomplete or inaccurate data provided by a third
party; or
10.3.3 us complying with any instruction or request by you or one of your
employees.]
11. TERMINATION
11.1 If you commit a [material] breach of the Contract we may terminate the
Contract [immediately by giving]/[by giving not less than [INSERT NUMBER]
days’] written notice to that effect to you. [This Condition Error! Reference
source not found. will not apply to any failure by you to make any payment
due to us under the Contract on or before the due date. Condition 11.2 will
apply instead to any such failure.]
11.2 [We may terminate the Contract [immediately by giving]/[by giving not less
than [INSERT NUMBER] days’] written notice to that effect to you if you fail to
make any payment due to us under the Contract [on or before]/[within [INSERT
TIMESCALE, EG SEVEN DAYS] after] the due date.]
11.3 We may terminate the Contract immediately by giving written notice to that
effect to you if any of the events or circumstances set out in Condition Error!
Reference source not found. occur. You will notify us immediately upon the
occurrence of any such event or circumstance.
11.4 If an event or circumstance which gives rise to relief from liability under
Condition 9.4 continues for a period of more than [INSERT PERIOD], either
party will be entitled to terminate the Contract [immediately by giving]/[by
giving not less than [INSERT NUMBER] days’] written notice to that effect to the
other party.
11.5 Following expiry or termination of the Contract:
11.5.1 any Conditions which expressly or impliedly continue to have effect
after expiry or termination of the Contract will continue in force; and
11.5.2 all other rights and obligations will immediately cease without
prejudice to any rights, obligations, claims (including claims for
damages for breach) and liabilities which have accrued prior to the
date of expiry or termination.
11.6 [Within [INSERT NUMBER] days after the date of expiry or termination of the
Contract each party will, subject to the exception set out in Condition 11.7,
11.6.1 return to the other party all Confidential Information (including all
copies and extracts) of the other party in its possession or control; and
11.6.2 cease to use the Confidential Information of the other party.16
11.7 Each party may retain any Confidential Information of the other party which it
has to keep to comply with any applicable law [or which it is required to retain
for insurance, accounting or taxation purposes]. Condition 12 will continue to
apply to retained Confidential Information [and Records].]
12. [CONFIDENTIALITY
12.1 Confidential Information” means any information (whether written, oral, in
electronic form or in any other media) that:
12.1.1 is disclosed by or on behalf of a party (the “Discloser”) to the other
party (the “Recipient”) in connection with the Contract and that
relates (in whole or in part) to the Discloser or its business[; and/or
12.1.2 relates to the [existence or] terms of the Contract,]
but excluding any information that falls within the exclusions set out in
Condition 12.4.
12.2 The Recipient will:
12.2.1 keep the Confidential Information secret, safe and secure and will only
disclose it in the manner and to the extent expressly permitted by the
Contract; and
12.2.2 use the Confidential Information only to the extent necessary for the
performance of its obligations under the Contract.
12.3 The Recipient may disclose Confidential Information:
12.3.1 to such of its officers and employees and, in our case, agents and sub-
contractors, who need access to that Confidential Information for the
purpose of complying with its obligations under the Contract;
12.3.2 to the extent necessary in order to be able to refer a dispute for
resolution in accordance with Condition 15.2; and
12.3.3 to the extent required by applicable law or a court of competent
jurisdiction or the rules of any listing authority, stock exchange, the
Panel on Takeovers and Mergers or a regulatory authority.
12.4 The Recipient’s obligations under this Condition 12 will not extend to
Confidential Information which the Recipient can prove:
12.4.1 has ceased to be secret without default on the Recipient’s part;
12.4.2 was already in the Recipient’s possession prior to disclosure by or on
behalf of the Discloser;17
12.4.3 has been received from a third party who did not acquire it in
confidence and who is free to make it available to the Recipient without
limitation;
12.4.4 [was independently developed by the Recipient without any breach of
the Contract;] or
12.4.5 at the time of disclosure was in the public domain or subsequently
enters into the public domain without default of the Recipient.
12.5 [The Recipient acknowledges and agrees that damages alone would not be an
adequate remedy for breach of this Condition 12 by the Recipient. Accordingly,
the Discloser will be entitled, without having to prove special damages, to
equitable relief (including injunction and specific performance) for any breach or
threatened breach of this Condition 12 by the Recipient.]]
13. NOTICE
13.1 [Subject to Condition 13.4,] [A][a]ny notice or other communication given
under or in connection with the Contract will be in writing[, in the English
language] and:
13.1.1 sent by pre-paid [first class post]/[recorded delivery]/[airmail post] to
the relevant party’s address;
13.1.2 delivered to or left at (but not, in either case, by post) the relevant
party’s address[; or
13.1.3 [sent by facsimile to the relevant party’s facsimile number]
[and, in the case of any notice or other communication to be given to us,
marked for the attention of our specified representative]. Our address[, facsimile
number] [and representative] are set out below and your address [and facsimile
number] are those detailed in [the Order], and may be changed by the relevant
party giving at least [NUMBER] [days]/[Business Days] notice in accordance with
this Condition 13.
[INSERT ADDRESS]
[INSERT FACSIMILE NUMBER]
For the attention of: [INSERT JOB TITLE]
13.2 Any notice or communication given in accordance with Condition 13.1 will be
deemed to have been served:
13.2.1 if given as set out in Condition 13.1.1, at 9.00 a.m. on the [INSERT
NUMBER] [day]/[Business Day] after the date of posting;18
13.2.2 if given as set out in Condition 13.1.2, at the time the notice or
communication is delivered to or left at that party’s address[; and]
[and]
13.2.3 [if given as set out in Condition 13.1.3, at the time of confirmation of
completion of transmission of the facsimile by way of a transmission
report;]
[provided that if a notice or communication is deemed to be served [before
[9.00am] on a Business Day it will be deemed to be served at [9.00am] on that
Business Day and if it is deemed to be served] on a day which is not a Business
Day or after [5.00pm] on a Business Day it will be deemed to be served at
[9.00am] on the immediately following Business Day].
13.3 To prove service of a notice or communication it will be sufficient to prove that
the provisions of Condition 13.1 were complied with.
13.4 [This Condition 13 will not apply to the service of any proceedings or other
documents in a legal action to which the Civil Procedure Rules apply.]
14. GENERAL
14.1 The Contract constitutes the entire agreement between the parties and
supersedes any prior agreement or arrangement in respect of its subject matter
and:
14.1.1 neither party has entered into the Contract in reliance upon, and it will
have no remedy in respect of, any misrepresentation, representation
or statement (whether made by the other party or any other person)
which is not expressly set out in the Contract;
14.1.2 [the only remedies available for any misrepresentation or breach of
any representation or statement which was made prior to entry into
the Contract and which is expressly set out in the Contract will be for
breach of contract]; and
14.1.3 nothing in this Condition 14.1 will be interpreted or construed as
limiting or excluding the liability of any person for fraud or fraudulent
misrepresentation.
14.2 A delay in exercising or failure to exercise a right or remedy under or in
connection with the Contract will not constitute a waiver of, or prevent or restrict
future exercise of, that or any other right or remedy, nor will the single or partial
exercise of a right or remedy prevent or restrict the further exercise of that or
any other right or remedy. A waiver of any right, remedy, breach or default will
only be valid [if it is in writing [and signed by the party giving it] and only] in the
circumstances and for the purpose for which it was given and will not constitute
a waiver of any other right, remedy, breach or default.19
14.3 If any term of the Contract (including any exclusion from, or limitation of,
liability set out in Condition 9) is found by any court or body or authority of
competent jurisdiction to be illegal, unlawful, void or unenforceable, such term
will be deemed to be severed from the Contract and this will not affect the
remainder of the Contract which will continue in full force and effect.
14.4 No variation to the Contract will be effective unless it is in writing and signed by
a [duly authorised representative]/[director] on behalf of each of the parties.
14.5 Nothing in the Contract and no action taken by the parties in connection with it
or them will create a partnership or joint venture [or relationship of employer
and employee] between the parties or give either party authority to act as the
agent of or in the name of or on behalf of the other party or to bind the other
party or to hold itself out as being entitled to do so.
14.6 Each party agrees that it is an independent contractor and is entering into the
Contract as principal and not as agent for or for the benefit of any other person.
14.7 [Save as provided in Condition 9.8,] the parties do not intend that any term of
the Contract will be enforceable under the Contracts (Rights of Third Parties) Act
1999 by any person.
14.8 Our rights and remedies set out in these Conditions are in addition to and not
exclusive of any rights and remedies provided by law.
14.9 You will not be entitled to assign, transfer, charge, hold on trust for any person
or deal in any other manner with any of your rights under the Contract.[You will
be entitled to sub-contract your obligation to collect Goods under Condition 4.1,
but] you will not be entitled to sub-contract any of your [other] obligations under
the Contract.
15. GOVERNING LAW AND JURISDICTION
15.1 The Contract [and any non-contractual obligations arising out of or in connection
with it] will be governed by the law of England and Wales.
15.2 [Subject to Condition 15.3,] each party agrees that the courts of England and
Wales have exclusive jurisdiction to determine any dispute arising out of or in
connection with the Contract [(including in relation to any non-contractual
obligations)].
15.3 [Either party may seek specific performance, interim or final injunctive relief or
any other relief of similar nature or effect in any court of competent jurisdiction]