Last updated: July 2022
Conditions for the Supply of Goods & Services
1. Interpretation
The definitions and rules of interpretation in this clause apply in these Conditions.
1.1 Definitions:
Bespoke Software: software modified or to be modified by the Supplier under the Contract to be supplied to the Customer.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: these terms and conditions as amended from time to time in accordance with clause 2.2
Contract: the contract between the Supplier and the Customer under clause 3.3 for the supply of Equipment, Supplier Software, and Services in accordance with these Conditions, as may be further detailed in any applicable Outline Quotation and confirmed by the Customer’s written acceptance of the Sales Order Acknowledgement, including any agreed changes.
Contract Price: the aggregate price for the Contract.
Customer: the person, firm or company who purchases goods and/or services from the Supplier.
Equipment: the computer hardware and other equipment and goods to be supplied by the Supplier to the Customer (including without limitation any part or parts of the goods).
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Mandatory Policies: the Supplier’s business policies e, as notified to the Customer from time to time.
Order: the Customer’s order for the supply of Equipment, Supplier Software, and Services, as set out in the Sales Order Acknowledgement.
Outline Quotation: the detailed outline quotation describing the Equipment, Supplier Software, and Services and setting out the estimated prices, timetable and responsibilities of each of the parties for, or in connection with, the provision of goods and services by the Supplier.
Sales Order Acknowledgement: the Supplier’s written form of acknowledgement of the Customer’s order.
Services: the services to be supplied by the Supplier to the Customer (including without limitation any part or parts of the Services).
Standard Software: the software which is to be supplied by the Supplier to the Customer without modification.
Supplier: Sharp-aX Computer Systems Limited.
Supplier Software: the software to be supplied by the Supplier to the Customer, comprising the Standard Software and the Bespoke Software including, any modifications, updates, bespoke software, operating systems, third party software, open source software, whether or not pre-installed on the Equipment and whether owned by or licensed to the Supplier, and including without limitation any part or parts of the Supplier Software.
Training: the training to be supplied by the Supplier as part of the Services.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of the Contract.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the contract under that statute or statutory provision.
1.8 A reference to writing or written does not include faxes.
1.9 References to clauses and Schedules are to the clauses and Schedules of these Conditions and references to paragraphs are to paragraphs of the relevant Schedule.
1.10 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.11 References to software may be construed, without limitation, as references to goods and/or services as the context requires.
2. Application of Conditions
2.1 These Conditions shall:
(a) apply to and be incorporated in the Contract and any other contract between the Supplier and the Customer for the supply by the Supplier of goods and services; and
(b) prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of any term of these Conditions shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the Supplier. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. Basis of contract
3.1 Any quotation is valid for a period of 30 days only, and the Supplier may withdraw it at any time by notice to the Customer.
3.2 Each Order for equipment, software, and/or services by the Customer shall be deemed to be an offer by the Customer subject to these Conditions. The Customer shall ensure that its Order is complete and accurate.
3.3 A binding contract shall come into existence between the Supplier and the Customer upon the written acceptance by the Customer of the Supplier’s written Sales Order Acknowledgement to the Customer or the Customer’s payment of a non-refundable deposit of 30% of the Contract Price, (whichever occurs earlier).
3.4 No Sales Order Acknowledgement which has been accepted by the Customer may be cancelled by the Customer, except with the agreement in writing of the Supplier and provided that the Customer indemnifies the Supplier in full against all loss (including without limitation loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses, such being at a minimum of 30% of the Contract Price, incurred by the Supplier as a result of cancellation.
4. Quantity and description
4.1 The quantity and description of the Equipment, Supplier Software, and Services shall be as set out in the relevant Sales Order Acknowledgment or as varied by written agreement of the parties in accordance with these Conditions.
4.2 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 they do not form part of the Contract.
4.3 Any typographical, clerical or other error or omission in any sales literature, quotation, 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.
4.4 The Supplier reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment or the Supplier Software which are required to conform with any applicable legislation or, where the Equipment or Supplier Software is to be supplied to the Customer’s specification, which do not materially affect their quality or performance. Where the Supplier is not the manufacturer of the Equipment or Supplier Software, 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.
4.5 The Supplier’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the Equipment or the Supplier Software, or the Services.
5. Prices
5.1 All prices shall be as stated in the Sales Order Acknowledgement unless otherwise advised in accordance with these Conditions. All prices include delivery and insurance.
5.2 Prices for Equipment and Supplier Software do not include installation (see clause 7.10), which is charged on a per day basis.
5.3 VAT and other charges and duties are not included in the price.
5.4 The price of the Equipment, Supplier Software, and Services shall be the Supplier’s quoted price.
5.5 Where a Bespoke Software specification has been agreed and prepared by the Supplier it shall be binding on the Customer. In the event that the Customer requests a change to the specification, the Customer must do so in writing. The Supplier reserves the right to increase the price of the Bespoke Software if such a change can be accommodated.
5.6 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, Supplier Software and Services as has not been delivered to reflect any increase in the cost to the Supplier which is due to market conditions or 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, Supplier Software, or Services, which is 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.
5.7 If the increase in price under clause 5.6 exceeds 5% of the then Contract Price, otherwise than due to the act or omission of the Customer, either party may give notice that delivery of Equipment, Supplier Software, and Services is suspended until the parties have agreed a variation to the Contract and a consequential adjustment to the Contract Price, provided that if the parties are unable to agree a variation under this clause within 5 working days of the date of notice of such increase, the provisions of clause 20.1(a) shall apply.
5.8 Any costs estimates provided by the Supplier for software changes or development are based on prices ruling at the date of the Outline Quotation and will be held for a period of 3 months. The Supplier reserves the right to increase the prices after expiry of this period.
6. Payment
6.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier will invoice the Customer for the Contract Price in advance on receipt by the Supplier of the Sales Order Acknowledgement signed by the Customer in readiness for payment in full on delivery and installation of the Equipment and Standard Software.
6.2 Where the Customer wishes to make payment through a third party finance arrangement, adequate prior notice must be given to the Supplier to enable completion of any additional documentation in sufficient time to ensure payment in accordance with clause 6.3. Contact finance details must be provided to the Supplier in advance of delivery. Failure to provide adequate prior notice may impact on Contract timescales.
6.3 The terms of payment shall be:
(a) A non-refundable deposit of 30% of the Contract Price is payable on signature by the Customer of the Sales Order Acknowledgment; and
(b) the balance of the invoice for the Contract Price under clause 6.1 is payable on completion of the installation of any Equipment and Standard Software, whether or not title or grant of licence has passed to the Customer;
(c) and any other sums due for the supply of Equipment, Supplier Software, and Services will be invoiced at the end of the month following delivery payable within 30 days after the relevant invoice date; and
(d) in the case of export sales, in accordance with clause 13.4 below.
6.4 Time for payment of the price shall be of the essence.
6.5 If the Customer fails to make payment in full on the due date, the whole of the balance of the Contract Price and any other sums due 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:
(a) terminate the Contract or suspend any further deliveries of Equipment or Supplier Software or performance of Services (whether ordered under the same contract or not) to the Customer;
(b) appropriate any payment made by the Customer to such of the Equipment, Supplier Software, or Services or the Equipment, Supplier Software, or Services supplied under any other contract between the Customer and the Supplier as it thinks fit (despite any purported appropriation by the Customer);
(c) charge interest on the amount outstanding from the due date to the date of receipt by the Supplier (whether before or after judgment), at the annual rate of 4% above the base lending rate from time to time of National Westminster Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
(d) suspend all further or other development, delivery, installation or warranty services until payment has been made in full;
(e) make a storage charge for any undelivered Equipment at its current rates from time to time;
(f) stop any Equipment in transit; and
(g) apply a general lien on all Equipment and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to the Supplier. The Supplier shall be entitled, on the expiry of 14 days’ notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
6.6 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 6.6 is without prejudice to any right to claim for interest under the law, or any right under the Contract.
6.7 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.
6.8 The Customer shall pay the Contract Price and any other sums due to the Supplier in pounds sterling.
7. Delivery of Equipment, Supplier Software, and Services and acceptance
7.1 The Supplier shall use its reasonable endeavours to deliver the Equipment, Supplier Software, and Services on the date or dates specified in the Sales Order Acknowledgement, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of the later of acceptance of the Sales Order Acknowledgement or payment of the deposit. Time is not of the essence as to the delivery of the Equipment, Supplier Software, and Services, and the Supplier is not in any circumstances liable for any delay in delivery, however caused.
7.2 The Equipment, Supplier Software, and Services may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.
7.3 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.
7.4 The Customer shall co-operate with the Supplier in all matters relating to delivery and installation of the Equipment, Supplier Software, and Services.
7.5 The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location for the delivery of the Equipment, Supplier Software, and Services, and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment, Supplier Software, and Services, in accordance with and as agreed at the time of the Supplier’s site survey or as otherwise agreed between the parties. If the Supplier is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this event.
7.6 The Customer and Supplier shall comply with all applicable laws including health and safety laws.
7.7 The Supplier shall ensure that, while on the Customer’s premises, persons who enter such premises with the authority of the Supplier for the purpose of, or in connection with, the Contract or the supply of Equipment, Supplier Software, and Services, adhere to the Customer’s security procedures and health and safety regulations, as from time to time notified to the Supplier or otherwise brought to the notice of the Supplier or such persons. The Customer may remove or refuse admission to any person who is, or has been, in material breach of such procedures and regulations. However, the Supplier shall incur no liability for any delay in performing or failure to perform its obligations under the Contract as a result of compliance with the terms of this Clause 7.7.
7.8 The Customer shall be deemed to have accepted the Equipment, and the Standard Software after delivery and installation of the same (or, if by instalment, delivery and installation of the relevant instalment) if the Customer has not afterwards exercised in writing its right of rejection in accordance with clause 14.
7.9 The Supplier shall be responsible for any damage, shortage or loss in transit, of Equipment provided that the Customer notifies it to the Supplier (or its carrier, if applicable) within three days of delivery or the proposed delivery date of the Equipment (or part of the Equipment, if by instalment) and that the Equipment has been handled in accordance with the Supplier’s stipulations. Any remedy under this clause 7.9 shall be limited, at the option of the Supplier, to the replacement or repair of any Equipment which is proven to the Supplier’s satisfaction to have been lost or damaged in transit.
7.10 The Supplier may deliver the Equipment, Supplier Software and Services by instalments, which may, at the option of the Supplier, be invoiced and paid for separately. Each instalment may, at the option of the Supplier, constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
8. Supply of Services
8.1 The Supplier shall supply the Services to the Customer in accordance with the Contract in all material respects.
8.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 The Supplier reserves the right to amend any specification for Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
8.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8.5 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default), without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
9. Installation/Networking and Cabling:
9.1 A site survey may be carried out at the option of the Supplier to identify underspecified equipment, or any other concerns with regards to safety of the Supplier’s installation.
9.2 The time required for installation is dependent on the number of PCs and printers on the Network.
9.3 Installation does not include the set-up of email and internet as standard unless previously specified in the Sales Order Acknowledgement.
9.4 Cabling and Networking can be provided and will be quoted for following a site survey.
9.5 The Supplier will use existing hardware devices where appropriate.
9.6 Where additional hardware, PCs, printers and other peripherals are purchased by the Customer from third parties, it is the Customer’s responsibility to arrange installation and configuration of those devices.
9.7 A charge may apply to set up and network a new PC for the Supplier Software.
9.8 Essential Requirements: Customers must ensure that the following are in place prior to accepting delivery:
(a) a clean digital line and broadband internet access which may be shared with a fax facility only;
(b) a legal copy of MS Windows 10 or later for each PC;
(c) at least one licensed copy of Microsoft Office including Excel for data preparation;
(d) Professional Anti-Virus Protection for all hardware attached to the network;
(e) an uninterruptable power supply to safeguard the server from power cuts; and
(f) Automatic 24 hours/7 days per week backup service to secure the Supplier data.
10. Risk and property
10.1 The Equipment shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Sales Order Acknowledgement. The Supplier shall off-load the Equipment at the Customer’s risk.
10.2 Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including without limitation off-loading), or when the Supplier has received payment in full in cleared funds all sums due to it in respect of:
(a) the Contract Price; and
(b) all other sums which are or which become due to the Supplier from the Customer on any account.
10.3 Until ownership of the Equipment (including, so far as applicable, rights in Supplier Software) has passed to the Customer under clause 10.2, the Customer shall:
(a) hold the Equipment on a fiduciary basis as the Supplier’s bailee;
(b) store the Equipment (at no cost to the Supplier) in satisfactory conditions and separately from all the Customer’s other equipment or that of a third party, so that it remains readily identifiable as the Supplier’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
(d) 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.
10.4 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 19 arise or 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.
10.5 Until ownership of the Equipment is transferred to the Customer in accordance with clause 10.2, the Customer grants the Supplier, its agents and employees an irrevocable licence at any time 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 remove it, notwithstanding that it may contain software and data. All costs incurred by the Supplier in repossessing the Equipment shall be borne by the Customer.
10.6 On termination of the Contract for any reason, the Supplier’s (but not the Customer’s) rights in this clause 10 shall remain in effect.
10.7 The Supplier may appropriate payments by the Customer to such Equipment, Supplier Software, or Services as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary and may make such appropriation at any time.
11. Training
11.1 Training will be carried out at the Supplier’s premises at Berkhamsted unless agreed otherwise. Premises used for training other than the Supplier’s premises must be safe and suitable and suitably equipped for the purpose of the Training in the opinion of the Supplier, failing which, the Supplier reserves the right to change the location for Training as it considers appropriate.
12. Software licence
12.1 Software licences granted under the Contract are as stated in the Sales Order Acknowledgement.
12.2 If the Customer is provided with any operating system software licences in respect of the Equipment, any licence media/paperwork is left at Customer’s premises.
12.3 Without prejudice to any other software licence terms under the Contract, the Customer hereby accepts a non-exclusive, non-transferable licence to use the Supplier Software on the following conditions:
(a) the Customer shall not copy (except to the extent permissible under applicable law which is not capable of exclusion by agreement or for normal operation of the Equipment), reproduce, translate, adapt, vary or modify the Supplier Software, nor communicate it to any third party, without Supplier’s prior written consent;
(b) the Customer shall not use the Supplier Software on any equipment other than the Equipment, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Supplier Software on the medium on which it resides;
(c) such licence shall be terminable by either party on 28 days’ written notice, provided that the Supplier terminates only if the continued use or possession of the Supplier Software by the Customer infringes the licence granted under these Conditions or a third party’s rights, or the Supplier is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract, or if the Supplier may terminate sooner in accordance with these Conditions; and
(d) on or before the termination or expiry of this licence, the Customer shall return to the Supplier or otherwise dispose of at the Supplier’s direction all copies of the Supplier Software in its possession.
13. Export terms
13.1 Where the Equipment, Supplier Software, and/or Services are 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.
13.2 The Customer shall be responsible for complying with any legislation governing:
(a) the importation of the Equipment and/or Supplier Software into the country of destination; and
(b) the export and re-export of the Equipment and/or Supplier Software,
and shall be responsible for the payment of any duties on it.
13.3 The Supplier shall be responsible for arranging for the testing and inspection of the Equipment and Supplier Software at the Supplier’s premises before shipment.
13.4 Payment of all amounts due to the Supplier shall be made by irrevocable letter of credit opened by the Customer in favour of the Supplier and confirmed by a bank in England acceptable to the Supplier or, if the Supplier has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Supplier of a bill of exchange drawn on the Customer payable 60 days after sight to the order of the Supplier at such branch of National Westminster Bank plc in England as may be specified in the bill of exchange.
14. Equipment Warranty
14.1 The Supplier warrants to the Customer that the Equipment is free from defects of workmanship and materials. The Supplier undertakes (subject to the remainder of this clause 14), at its option, to repair or replace Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within six months of delivery and installation. All servers carry an on-site 3 year warranty/4 hour response and PCs an on-site 3 year warranty.
14.2 The Supplier shall not in any circumstances be liable for a breach of the warranty contained in clause 14.1 unless:
(a) the Customer gives written notice of the defect to the Supplier within seven days of the time when the Customer discovers or ought to have discovered the defect; and
(b) after receiving the notice, the Supplier is given a reasonable opportunity of examining such Equipment and the Customer (if asked to do so by the Supplier) returns such Equipment to the Supplier’s place of business at the Supplier’s cost for the examination to take place there.
14.3 The Supplier shall not in any circumstances be liable for a breach of the warranty in clause 14.1 above if:
(a) the Customer makes any use of Equipment in respect of which it has given written notice under clause 14.3(a); or
(b 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
(c) the Customer alters or repairs the relevant Equipment without the written consent of the Supplier.
14.4 Any repair or replacement of Equipment by the Supplier shall be under warranty for the unexpired portion of the six-month period.
14.5 The Supplier shall not in any circumstances be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application.
15. Remedies
15.1 The Supplier shall not in any circumstances 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 days after the scheduled delivery date.
15.2 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.
15.3 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 below), 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 it might have against the Customer in this respect.
15.4 In the event of any claim by the Customer under the warranty given in clause 14.1 above, 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 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.
16. LIMITATION OF LIABILITY
16.1 The following provisions set out the entire financial liability of the Supplier (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of contract howsoever arising; and
(b) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence).
16.2 All warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.
16.3 Nothing in these Conditions excludes or limits the liability of the Supplier for:
(a) death or personal injury caused by the Supplier’s negligence; or
(b) fraud or fraudulent misrepresentation.
16.4 Subject to clause 16.2 and clause 16.3:
(a) the Supplier shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss or corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) The Supplier’s total liability in contract, tort (including without limitation negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, shall be limited to £10,000 or the Contract Price stated in the relevant Sales Order Acknowledgement, whichever is the lesser.
17. Intellectual Property Rights
17.1 If the Supplier manufactures or develops the Equipment, or applies any process or modification to the same, 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 consequential losses, loss of profit and loss of reputation, and all 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. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Supplier.
17.2 The Customer acknowledges that, subject to the grant of licences under the Contract, all Intellectual Property Rights used by or subsisting in the Equipment, the Supplier Software, and the Services are and shall remain the sole property of the Supplier or (as the case may be) third party rights owner.
17.3 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.
17.4 The Supplier’s Intellectual Property Rights in and relating to the Equipment and the Supplier Software and the Services shall remain the exclusive property of the Supplier, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.
17.5 In relation to the Supplier Software and the Services:
(a) Nothing contained in these Conditions shall be construed as an assignment of any Intellectual Property Rights in the Supplier Software or the Services; and
(b) the Customer shall be subject to the rights and restrictions imposed by the owner of the Intellectual Property Rights in the Supplier Software and the Services, and shall comply with all licence contracts, terms of use and registration requirements relating to them.
(c) the Customer shall indemnify and keep indemnified the Supplier against all losses, damages, costs, claims, demands, liabilities and expenses (including without limitation consequential losses, loss of profit and loss of reputation, and all 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 other information or software or any modification of the Supplier Software or the Services. The indemnity shall apply whether or not the Customer has been negligent or at fault and does not limit any further compensation rights of the Supplier.
18. Confidentiality and Supplier’s property
18.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Customer.
18.2 All Supplier materials, equipment and tools, drawings, specifications and data of the Supplier used by the Supplier for the purpose of supplying the Equipment, Supplier Software, and Services to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or authorisation.
18.3 This clause 18 shall survive termination of the Contract, however arising.
19. Data Protection and compliance with Mandatory Policies
19.1 Both parties will comply with all applicable requirements of data protection legislation. This clause 19 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under applicable data protection legislation.
19.2 Without prejudice to the generality of clause 19.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any personal data to the Supplier and/or lawful collection of any personal data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.
19.3 Either party may, at any time on not less than 30 days’ notice, request the consent of the other party (such consent not to be unreasonably withheld or delayed) to the revision or replacement of this clause 19 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme.
19.4 In performing its obligations under the Contract the Customer will comply with the Mandatory Policies.
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 without liability to the Customer and, if any Equipment, Supplier Software, or Services have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous Contract or arrangement to the contrary if:
(a) the ability of the Customer to accept delivery of the Equipment, Supplier Software or Services is delayed, hindered or prevented by circumstances beyond the Customer’s reasonable control;
(b) 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) 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;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer;
(e) 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;
(f) the holder of a qualifying floating charge over the assets of Customer has become entitled to appoint or has appointed an administrative receiver;
(g) 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;
(h) 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 the Customer’s assets and such attachment or process is not discharged within 14 days;
(i) 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 clause 20.1(b) above to clause 20.1(h) above (inclusive);
(j) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(k) there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).
20.2 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
20.3 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
21. Force majeure
21.1 The Supplier reserves the right to defer the date of delivery, or reduce the amount of Equipment, Supplier Software or Services ordered or otherwise alter the Contract or to cancel the Contract, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control ( Force Majeure Event), including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, pandemic, epidemic, 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 of suppliers or sub-contractors.
22. Waiver
22.1 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23. Rights and remedies
23.1 Except as expressly provided in these Conditions, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
24. Severance
24.1 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed deleted. Any deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.
24.2 If any provision or part-provision of these Conditions is deemed deleted under clause 24.1, the parties shall negotiate in good faith to agree a replacement provision that, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
25. Entire agreement
25.1 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.
25.2 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 (whether made innocently or negligently) that is not set out in the Contract.
25.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
25.4 Nothing in this clause shall limit or exclude any liability for fraud.
26. Assignment
26.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
26.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
27. Third party rights
27.1 No one other than a party to the Contract shall have any right to enforce any of its terms.
28. Notices
28.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class recorded delivery post to its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the email address stated below, or as otherwise notified to the other party from time to time:
(i) the Supplier’s email address: [sales@Sharp-ax.com];
(ii) the Customer’s email address [as specified in the Outline Specification].
28.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class recorded delivery post, at 9.00 am on the second Business Day after posting;
(c) if sent by email, at 9.00 am on the next Business Day after transmission.
28.3 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.
29. Governing law
29.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
30. Jurisdiction
30.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or the Contract or its subject matter or formation (including non-contractual disputes or claims).
