1.1 In these Conditions, the following definitions apply:
a day (other that Saturday, Sunday or a public holiday) when banks in London are open for business;
the terms and conditions set out in this document as amended from time to time in accordance with Condition 12.11;
all information in whatever form (including, without limitation, in written, oral, visual or electronic form, or on tape or disk) relating to the prices and payment terms discussed, agreed or paid between the Customer and the Supplier, and which are not publicly available;
the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or the supply of Services and/or the hire of Goods in accordance with these Conditions;
the person or firm who purchases and/or hires the Goods and/or Services from the Supplier;
“Force Majeure Event”
has the meaning given in Condition 10;
the goods (or any part of them) set out in the Order;
“Intellectual Property Rights”
all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including 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;
in relation to any period and any amount:
(a) the rate for deposits of sterling in any amount comparable to the amount in relation to which LIBOR is to be determined and for such period at or about 11.00am on the first day of such period as displayed on Telerate page 3750 (British Bankers’ Association Interest Settlement Rate) or such other page as may replace such page 3750 on such system from time to time; or
(b) if at or about 11.00am on the first day of such period for in paragraph (a) above, LIBOR for such period shall be the rate at which deposits in sterling and in amount comparable with such amount and for a period equal to such period were being offered by first class banks in London interbank market at or about 11.00am on such day;
the Customer’s order for the purchase of Goods and/or Services, as set out in the Customer’s purchase order form; or the Customer’s written acceptance of the Supplier’s quotation; or the Customer’s order for hired Goods pursuant to a Rental Agreement, as the case may be;
a written order confirmation sent by the Supplier to the Customer, agreeing to fulfil an Order or in the case of Goods to be hired, a Rental Agreement signed by the Supplier;
a hire agreement signed by the Customer in a form acceptable to the Supplier;
any services to be provided by the Supplier under the Contract;
any specification for the Goods, including any related plans and drawings, that is supplied to the Supplier by the Customer, or produced by the Supplier and agreed in writing by the Customer; and
Eagle Product Inspection Safeline Limited incorporated and registered in England and Wales with company number 2261148 and whose registered office is at Olympic Court, Montford Street, Salford M50 2XD.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and e-mails provided always that e-mails sent to the Supplier must be sent to email@example.com or such other e-mail address as the Supplier may notify the Customer for this purpose.
2. Basis of Contract
2.1 Subject to Condition 2.2, these Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 For the avoidance of doubt, a Rental Agreement or any written distribution agreement between the Supplier and the Customer will override these Conditions to the extent they contradict each other.
2.3 The Order constitutes an offer by the Customer to purchase the Goods and/or receive the Services and/or hire the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
2.4 The Order shall only be deemed to be accepted when the Supplier issues the Order Confirmation, at which point the Contract shall come into existence.
2.5 The Contract (together with any additional terms set out in the Order Confirmation) constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any additional terms set out in the Order Confirmation shall prevail over these Conditions.
2.6 Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the sale and/or hire of the Goods and/or the supply of Services.
2.7 A quotation for the Goods and/or Services given by the Supplier shall not constitute an offer. The Supplier can withdraw such quotation by notice in writing to the Customer at any time.
3.1 The Supplier shall ensure that:
3.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
3.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
3.2 The Customer shall collect the Goods from the Supplier’s premises at Greenfields, Royston Business Park, Royston, Hertfordshire, SG8 5HN or such other location as may be advised to the Customer by the Supplier (the “Delivery Location”) within 3 Business Days of the Supplier notifying the Customer that the Goods are ready for collection. Delivery shall be EX works in accordance with Incoterms 2000.
3.3 Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
3.4 If the Supplier uses a carrier, bailee or custodian to deliver the Goods, the Goods will be deemed to be delivered at the point at which the Supplier delivers the Goods to or the Goods are collected by the carrier, bailee or custodian for transmission to the Customer.
3.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
3.6 If for any reason the Customer fails to take delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready:
3.6.1 risk in the Goods shall pass to the Customer (including for loss or damage caused by the Supplier’s negligence);
3.6.2 delivery of the Goods shall be deemed to have been completed at
9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready;
3.6.3 the Supplier may store the Goods until delivery takes place, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and
3.6.4 the Supplier may levy further charges to recover its losses arising from this event.
3.7 If 10 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.8 No claim for faulty Goods or shortages will be considered unless the Supplier is advised in writing within 5 Business Days of delivery. In the absence of such advice the Customer shall be deemed to have accepted the Goods.
3.9 No claim for non-delivery of Goods shall be considered unless the Supplier is advised in writing within 5 Business Days of the date of the Supplier’s invoice, failing which any claim shall be deemed to have been waived and shall be absolutely barred.
3.10 Subject to Condition 3.11, any liability of the Supplier for non-delivery and/or faulty Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for the Goods.
3.11 Notwithstanding Condition 3.10, the Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to obtain any relevant import/export authorisations required or failure to provide the Supplier with any instructions that are relevant to the supply of the Goods.
3.12 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
3.13 The quantity of any consignment of Goods as recorded by the Supplier upon collection by the Customer or despatch from the Supplier’s place of business (as applicable) shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
3.14 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.1 Subject to Conditions 4.2 to 4.4, the Supplier warrants that on delivery, and for a period of 12 months from the date of delivery or 18 months from the date of shipment (whichever occurs first) (the “Warranty Period”), the Goods (other than Third Party Goods (as defined below) shall:
4.1.1 conform in all material respects with their description;
4.1.2 be free from material defects in design, material and workmanship under normal use; and
4.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
Notwithstanding the above, for generators, there is a pro-rated warranty that commences on the date of installation or 18 months from the date of shipment to the buyer whichever occurs first for the specified amount of time listed in the table below unless otherwise noted The pro-rated warranty does not start over if the generator is replaced under the pro-rated warranty period. The customer has the option to purchase a new generator at the current list price to start a new pro-rated warranty period. Other associated fees are not included with the pro-rated warranty period. There is a disposal fee for defective items returned to Eagle Product Inspection Standard X-Ray Generator Warranty:
HR 7, HR11, HR10
1st year 100% replacement
2nd year 75% of exchange list price
3rd year 50% of exchange list price
4th year 25% of exchange list price
Hi Performance X-Ray Generator Warranty:
1st year 100% replacement
2nd year 50% of exchange list price
4.2 Notwithstanding Condition 4.1, the Customer acknowledges that any Goods supplied to the Supplier by a third party supplier for on-sale to the Customer (and therefore not manufactured by the Supplier itself) (“Third Party Goods”), shall not have the benefit of the warranty provided under Condition 4.1 but the Supplier shall use reasonable endeavours to procure that any warranty provided by the third party supplier in relation to such Third Party Goods shall be capable of being transferred to the Customer. The Customer further agrees to comply with the terms and conditions of any end user licence agreement or similar which may apply to software comprising Third Party Goods.
4.3 Notwithstanding Condition 4.1, the Customer acknowledges that any Goods supplied in accordance with the Specification shall not have the benefit of the warranty provided under Condition 4.1 to the fullest extent permitted by law.
4.4 The Customer further acknowledges that any software provided by the Supplier may not be free of bugs or errors or that the Customer will be able to operate the software without interruption or that the software will be free of vulnerability to intrusion or attack. The Customer agrees that the existence of any minor errors, interruptions in use or attacks shall not constitute a breach of the warranty set out in Condition 4.1.
4.5 Subject to Conditions 4.2 to 4.4 and 4.6, if:
4.5.1 the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Condition 4.1 and follows any problem reporting, problem determination and resolution procedure provided by the Supplier; and
4.5.2 the Supplier is given a reasonable opportunity to diagnose and resolve such breach by any one or more of the following means (at the absolute discretion of the Supplier):
(a) by telephone;
(c) by remote problem determination;
(d) by examining such Goods (either at the Customer’s premises or elsewhere); or
(e) by the Customer returning such Goods to the Supplier’s place of business (or such other place as specified by the Supplier) at the Supplier’s cost (or the Customer’s cost if the relevant Goods are located outside England or are located more than 50 miles from the Supplier’s nearest service representatives or authorised service provider); and
4.5.3 a breach of the warranty set out in Condition 4.1 is confirmed by the Supplier,
then the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.6 In the event that the Customer gives notice under Condition 4.5 and after investigation, the Supplier concludes that there is no breach of the warranty set out in Condition 4.1, or if a breach did exist but the Customer had not installed available remote connectivity tools and equipment for direct problem reporting and/or remote problem determination or remote problem resolution, the Customer shall indemnify the Supplier for all related costs and expenses incurred by the Supplier in investigating and fixing (if applicable) such alleged breach.
4.7 In the event that the Customer requests that the Supplier rectifies a breach of warranty outside the Supplier’s normal working hours, the Supplier shall be entitled to charge the Customer a premium for such work.
4.8 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in Condition 4.1 if:
4.8.1 the Customer makes any further use of such Goods after giving notice in accordance with Condition 4.5; or
4.8.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice; or
4.8.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer; or
4.8.4 the defect arises as a result of the Customer incorporating or integrating equipment with the Goods that are not approved by the Supplier; or
4.8.5 the Customer alters or repairs such Goods without the written consent of the Supplier; or
4.8.6 the defect arises as a result of fair wear and tear, accident, misuse, abuse, wilful damage, negligence, or abnormal storage or working conditions; or
4.8.7 the defect arises in Goods classed as accessories, consumables or perishables; or
4.8.8 the defect is in relation to the calibration of any scale.
4.9 Except as provided in this Condition 4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Condition 4.1.
4.10 In relation to any Services, the Supplier warrants that these will be carried out in a workmanlike manner in conformity with standard industry practice. In the event that the Customer detects within 30 days of the Services having been completed and prompt notification is made in writing by the Customer to the Supplier, the Supplier will use reasonable endeavours to supply the necessary service, direction or consultation to correct the nonconformity within a reasonable period of time.
4.11 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
4.12 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier provided always that in the event the Supplier repairs or replaces certain parts of the Goods, such repairs or replacement shall not extend or generate a new Warranty Period for the Goods as a whole or for any parts not repaired or replaced.
5. Title and risk
5.1 The risk in the Goods shall pass to the Customer at the point at which the Supplier delivers the Goods to or the Goods are collected by the carrier, bailee or custodian for transmission to the Customer.
5.2 Subject to Condition 5.3, title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
5.2.1 the Goods; and
5.2.2 all other sums which are or which become due to the Supplier for sales of the Goods or any other products to the Customer.
5.3 Title to hired Goods shall never pass to the Customer and shall remain under the ownership of the Supplier at all times.
5.4 Until title to the Goods has passed to the Customer (and during any hire of the Goods), the Customer shall:
5.4.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
5.4.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
5.4.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.4.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
5.4.5 notify the Supplier immediately if it becomes subject to any of the events listed in Condition 7.2;
5.4.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time; and
5.4.7 in relation to hired Goods:
(a) ensure that the Goods are kept and operated in a suitable environment, used only for the purpose for which they were designed, and operated in a proper manner by trained competent staff in accordance with the operating instructions provide by the Supplier;
(b) take such steps (including compliance with all safety and usage instructions provided by the Supplier) as may be necessary to ensure, so far as is reasonably practicable, that the Goods are at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
(c) maintain at its own expense the Goods in a good and substantial repair in order to keep it in as good an operating condition as it was on delivery (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Goods;
(d) make no alteration to the Goods and shall not remove any existing components form the Goods (unless carried out to comply with any mandatory modifications required by law or regulatory authority or unless the components are replace immediately (or of removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Goods shall vest in the Supplier immediately upon installation;
(e) keep the Goods at all times at the Site (as defined in the Hire Agreement) and shall not move or attempt to move any part of the Goods to any other location without the Supplier’s prior written consent;
(f) permit the Supplier or its duly appointed representative to inspect the Goods at all reasonable times and for such purpose enter the Site or any premises where the Goods may be located, and shall grant reasonable access and facilities for such inspection;
(g) maintain operating and maintenance records of the Goods and make copies of such records readily available to the Supplier, together with such additional information as the Supplier may reasonably require; and
(h) not part with control of, sell or offer for sale, underlet or lend the Goods or allow the creation of any mortgage, charge, lien or other security interest in respect of it,
but the Customer may resell (except in respect of any hired Goods) or use the Goods in the ordinary course of its business.
5.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 7.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5.6 The Customer shall indemnify the Supplier for all related costs and expenses (including, without limitation, collection costs, legal fees and court costs) incurred by the Supplier in recovering the Goods pursuant to Condition 5.5.
6. Price and payment
6.1 The price of the Goods and/or Services shall be the price set out in the Order Confirmation.
6.2 The Supplier may, by giving notice to the Customer at any time up to 1 Business Day before delivery of the Goods and/or Services, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services that is due to:
6.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes, duties, surcharges or levies, and increases in labour, materials and other manufacturing costs);
6.2.2 any request by the Customer to change the delivery date, quantities or types of Goods and/or Services ordered, or the Specification; or
6.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
6.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport (if applicable) of the Goods, which shall be paid by the Customer when it pays for the Goods.
6.4 The price of the Goods and/or Services is exclusive of amounts in respect of value added tax (“VAT”) or other customs duties (“Duty”) that the Supplier may incur. The Customer shall, on receipt of a valid VAT invoice or invoice in respect of Duty from the Supplier, pay to the Supplier such additional amounts in respect of VAT or Duty as are chargeable on the supply of the Goods and/or Services.
6.5 The Supplier may at any time require payment in advance or payment on account prior to providing Goods and/or Services.
6.6 In the event that the Supplier has agreed to waive its right to receive payment in advance or on account in accordance with Condition 6.5, the Customer shall pay each invoice in full and in cleared funds within 30 calendar days of the end of the month following completion of delivery of the Goods and/or Services (unless the Supplier has agreed in writing to extend or vary such terms of payment).
6.7 All payments shall be made to the bank account nominated in writing by the Supplier and time of payment is of the essence.
6.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (the “due date”), then:
6.8.1 the Customer shall pay interest on the overdue amount at the rate of 4% per annum above LIBOR. Such interest shall accrue on a daily basis and being compounded quarterly from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
6.8.2 the Supplier may suspend the delivery of all Goods and/or Services until payment has been made in full; and
6.8.3 the Customer shall indemnify the Supplier for all related costs and expenses (including, without limitation, collection costs, legal fees and court costs) incurred by the Supplier in recovering payments.
6.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.10 In the event that LIBOR cannot be ascertained at any such relevant time or the Supplier determines acting reasonably that, having regard to circumstances affecting the London interbank market generally, adequate and fair means for calculating LIBOR do not exist, then the Supplier shall give notice thereof to the Customer and interest on the overdue amount shall be calculated for such period at the rate per annum which is 4% above The Royal Bank of Scotland plc’s base lending rate from time to time.
7. Customer’s insolvency or incapacity
7.1 If the Customer becomes subject to any of the events listed in Condition 7.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods and/or Services delivered to the Customer shall become immediately due.
7.2 For the purposes of Condition 7.1, the relevant events are:
7.2.1 the Customer fails to make any payment due to the Supplier under the Contract by the due date; or
7.2.2 the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or
7.2.3 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
7.2.4 (being an individual) the Customer is the subject of a bankruptcy petition or order; or
7.2.5 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
7.2.6 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
7.2.7 (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
7.2.8 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
7.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 7.2.1 to Conditions 7.2.8 (inclusive); or
7.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
7.2.11 the financial position of the Supplier deteriorates to such an extent that in the opinion of the Customer the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
7.2.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8. Intellectual Property Rights
8.1 The Customer acknowledges that all Intellectual Property Rights in the Goods and/or Services belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Goods and/or Services other than the right to use it in accordance with these Conditions.
8.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer through the courts in England alleging that the Goods (or any part of them) supplied by the Supplier to the Customer infringes the UK Intellectual Property Rights of a third party (a “Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, this Condition 8.2 shall not apply where the Claim in question is attributable to:
8.2.1 possession, use, development, modification or maintenance of the Goods (or any part thereof) by the Customer other than in accordance with these Conditions; or
8.2.2 the Specification.
8.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under Condition
8.2 are conditional on the Customer:
8.3.1 as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
8.3.2 not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
8.3.3 giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
8.3.4 subject to the Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
8.4 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
8.4.1 procure for the Customer the right to continue use of the Goods (or any part thereof) in accordance with these Conditions;
8.4.2 modify the Goods so that they cease to be infringing;
8.4.3 replace the Goods with non-infringing goods; or
8.4.4 terminate the relevant Contract immediately by notice in writing to the Customer and repay any sums paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Goods to the date of termination) on return of the Goods.
8.5 Nothing in this Condition 8 shall restrict or limit the Customer’s
general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a Claim.
8.6 The Customer shall indemnify the Supplier for all costs and expenses (including, without limitation, legal fees and court costs) incurred by the Supplier in defending any claim or action brought against the Supplier by a third party alleging that the Goods (or any part of them) infringes their UK Intellectual Property Rights if such infringement (or alleged infringement) is a result of the Specification.
8.7 To the extent that any software is inherent in any Goods supplied, the Supplier shall grant the Customer a non-exclusive, royalty free licence to use such software for the sole purpose of operating the Goods.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to Condition 9.1:
9.2.1 the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed the price of the Goods and/or Services (as applicable and as set out in the Order Confirmation).
10. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11. Confidential Information
The Customer shall (without time limit) keep confidential and procure the confidentiality of all Confidential Information which it has obtained.
12.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.3 The Customer agrees to comply with the Waste Electronic and Electrical Equipment Regulations 2006 in relation to the Goods as if it were the Supplier.
12.4 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier, fax or e-mail.
12.5 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 12.3; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, at the time of transmission or if sent by e-mail, at the time of receipt.
12.6 Conditions 12.4 and 12.5 shall not apply to the service of any proceedings or other documents in any legal action.
12.7 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
12.8 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.9 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.10 A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.11 Any variation to the Contract shall only be binding when agreed in writing and signed by both parties. The Supplier reserves the right to amend these Conditions from time to time provided that the Supplier has given the Customer one months’ written notice of such changes.
12.12 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.