Terms & Conditions for the Sale of Goods & Supply of Services of Sportsafe UK Ltd

DATED

14th May 2018

Fisher Jones Greenwood LLP Charter Court

Newcomen Way Severalls Business Park Colchester

Essex CO4 9YA

INTERPRETATION

Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Commencement Date: as set out in each Order for Goods or Services for each Customer.
Conditions: these terms and conditions as amended from time to time in accordance with clause 21.10 and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Supplier
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the individual person or business who places and Order for goods and/or supply of services, and whose Order for Goods and/or Services is accepted by the Supplier.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the GDPR and any other directly applicable European Union regulation relating to privacy.
Delivery Date: the date on which the Goods and/or Services are to be delivered as stipulated in the Customer’s Order and as accepted by the Supplier.
GDPR: General Data Protection Regulation ((EU) 2016/679).
The Goods: the items (including any instalment of the Goods or any parts for them) to be supplied by the Supplier in accordance with these Terms and Conditions, including but not limited to, the manufacture and supply of sporting and fitness equipment.
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.
Month: a calendar month of the year.
Order: the Customer’s order for Goods and/or Services as set out in the Customer’s purchase order form.
Services: the services, to be supplied by the Supplier to the Customer as set out in the Order, including but not limited to the servicing and repair of sporting and fitness equipment.
Supplier: Sportsafe UK Limited, trading as Sportsafe UK Direct and Sportsafeuk Limited, a limited company incorporated and registered in England and Wales with company number 03370067 whose registered office is at 17-19 Smeaton Close, Severalls Industrial Park, Colchester, Essex, CO4 9QY
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.

BACKGROUND

The Supplier is in the business of supplying, servicing, manufacturing and repairing sporting and fitness equipment across the entirety of the United Kingdom and offers a full bespoke design, manufacture and installation service, tailored to suit the specific requirements of each Customer.

CONSTRUCTION

In these Conditions, the following rules apply:

a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

a reference to a party/parties includes its personal representatives, successors or permitted assigns;

a reference to a statute or statutory provision is a reference to such statute or statutory 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;

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

a reference to writing or written includes faxes, telex, e-mail or other similar means of communication.

the headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.

APPLICATION OF CONDITIONS

The Supplier shall supply and the Customer shall purchase the Goods and/or Services in accordance with the Order, which is subject to these Conditions.

The Contract shall be to the exclusion of any other terms and conditions except those expressly referenced therein.

BASIS OF CONTRACT

The Supplier’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.

An Order constitutes an offer by the Customer to purchase Goods or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and its contents therein are complete and accurate.

The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order whether by post or confirmation email.

All purchase orders accepted by the Supplier are divisible. Each delivery made or service provided thereunder:

Shall be deemed to arise from a separate contract and

May be invoiced separately and any invoice for a delivery or service shall be payable in full in accordance with the terms of payment provided for therein without reference to and notwithstanding any defect or default in the delivery of any other instalment or of any other instalment under any other contract.

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 Services described in them. They shall not form part of the Contract or have any contractual force.

Sales literature, price lists and other documents issued by the Supplier in relation to the Goods or Services are subject to alteration without notice and do not constitute offers to sell the Goods or supply the Services which are capable of acceptance.

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.

Any typographical, clerical or other accidental errors or omissions 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.

SUPPLY OF GOODS

The specification for the Goods shall be those set out in the Suppliers sales documentation (where supplied) unless varied expressly in the Order (‘the Specification’). Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Supplier are intended as a guide only and shall not be binding on the Supplier.

The Supplier reserves the right to make any changes in the Specification of the Goods which are required to conform to any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Suppliers Specification, which do not materially affect their quality or performance.

No Order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.

Prior to the confirmation of any Order for Goods or Services by the Supplier, such Order may be cancelled by the Customer by giving the Supplier written notice to this effect.

The Supplier endeavours to hold sufficient stock of all Goods to meet Orders. In the event of the Supplier holding insufficient stock of Goods ordered by the Customer, the Supplier is to notify the Customer of this fact as soon as possible and in any event, within 30 days of the lack of stock becoming apparent.

In the circumstances detailed in clause 6.5 above, the Supplier remains entitled, at their sole discretion, to act in any as follows:

supply or deliver a substituted product to the Customer;

delay the delivery of the Goods by a maximum of 30 business days until the out of stock product(s) are replenished and thus available; or

offer the Customer a full refund in relation to the out of stock Goods.

Where such a refund is to be made in accordance with clause 6.6(c), payment is to be made by the Supplier to the Customer as soon as practicable and in any event, no longer than 30 days after the Supplier sending the Customer notification of the Goods being out of stock.

DELIVERY AND NON-DELIVERY OF GOODS

The Supplier shall ensure that:

all reasonable endeavours are used to notify the Customer as soon as the Goods are ready for delivery;

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 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.

Delivery of the Goods shall be made by the Supplier to the place in the United Kingdom specified in the Order or such other location as the parties may agree (‘the Delivery Location’), including permitting the Customer to collect the Goods from the Supplier’s premises at 17-19 Smeaton Close, Severalls Industrial Park, Colchester, Essex, CO4 9QY

3 Standard delivery is anytime between 08.00hrs and 18.00hrs. Specific time slots and the associated costs must be agreed prior to the delivery date.

4 Upon delivery or collection of the Goods, a valid signature of the Customer or any representative of the Customer will be required in recognition and acceptance of the delivery or collection.

5 Any special delivery requirements must be agreed at the time the order is placed.

6 Should the Customer wish to collect the Goods from the premises of the Supplier, they must notify the Supplier of this fact at the time of placing the Order. Should no such notification be forthcoming, the Goods will be delivered by the Supplier to the address given as part of the Order.

The delivery driver’s responsibility is to off load to floor level adjacent to the delivery vehicle, equipment up to a size suitable for a tail lift, providing suitable offloading conditions have been made available. Any further assistance given is at the delivery driver’s discretion. Offloading of larger items is the responsibility of the Customer.

Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location

Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. If the Supplier is delayed in delivering or fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the

Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.

The Supplier shall have no liability for any delay to delivery or failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. In the latter circumstance, the Customer will be charged any cost of re-delivery incurred by the Supplier

11 If the Customer fails to take delivery of the Goods or any part of them on the date of delivery and for three business days thereafter, and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, then, except where such failure is caused by a Force Majeure event or the Supplier’s failure to comply with its obligations under the Contract, the Supplier shall be entitled upon giving written notice to the Customer:

to deem that delivery of the goods took place at 9.00am on the third Business Day after the date on which the Supplier notified the Customer that the Goods were ready; and

) to store or arrange for the storage of the Goods and charge the Customer all reasonable costs and expenses including storage, insurance and other charges arising as a result of storage.

If 30 Business Days after the day on which 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.

QUALITY OF GOODS

The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:

conform in all material respects with their description and any applicable Specification;

be free from material defects in design, material and workmanship; and

be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

No Goods may be returned to the Supplier without the prior agreement in writing of the Supplier.

Subject to clause 8.5, if,

on delivery, any of the Goods are defective in any material respect and either the Customer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery “condition and contents unknown” and the Customer gives written notice of such defect to the Supplier within 14 Business Days of such delivery;

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 clause 8.1;

the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost;

the Supplier is given a reasonable opportunity of examining such Goods; and

the Supplier is satisfied that the Goods were subject to defects of quality or condition which would not be apparent on inspection,

the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

The Supplier shall have no further liability to the Customer in respect thereof and the Customer may not reject the Goods if delivery is not refused or notice give by the Customer as aforesaid.

The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 8.1 in any of the following events:

the Customer makes any further use of such Goods after giving notice in accordance with clause 8.3;

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 regarding the same;

the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;

the Customer misuses, alters or repairs such Goods without the written consent of the Supplier;

the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions, or any act or omission on the part of the Customer, it’s employees, agents or any third party; or

the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

Goods, other than defective Goods returned under clause 8.3, returned by the Customer may be refunded or credited to the Customer at the Supplier’s sole discretion and without any obligation on the part of the Supplier.

The Customer shall be responsible to ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Customer is in compliance with all applicable statutory handling and is carried out in accordance with directions given by the Supplier or any competent governmental or regulatory authority. The Customer will indemnify the Supplier against any liability loss or damage the Supplier might suffer as a result of the Customer’s failure to comply with this condition.

Except as provided in this clause 8, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 8.1.

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.

RETURN OF GOODS AND REFUNDS

If the Customer is not satisfied with any Goods purchased from the Supplier, the Customer may cancel the Contract and return the Goods to the Supplier and obtain a full refund of the price of the returned Goods, provided:

The Customer informs the Supplier of the decision to cancel the Goods within 5 business days of delivery of the Goods; and

Written consent is obtained from the Supplier prior to the Goods being returned.

The Goods are returned in their original condition and packaging, together with the original documentation stating the Supplier’s reference number; and

The Goods are returned in accordance with condition 9.2 below.

While the Goods remain in the Customer’s possession the Customer is under a duty to ensure that the Goods are kept safe and secure.

Reasonable delivery, collection, transportation and restocking charges will apply to the Customer for the return of Goods.

All Goods will be tested and inspected and unless the Goods are subject to a manufacturing fault, this cost and any associated repair cost will be charged to the Customer.

Where the Goods are custom made to the order of the Customer, or are non-stock items, the Customer shall not be entitled to return the Goods or cancel the Order and receive a refund unless the Goods are faulty. The statutory rights of the Customer are unaffected.

RISK AND TITLE IN GOODS

The risk of damage to or loss of the Goods shall pass to the Customer on completion of delivery in accordance with the INCO terms, or:

In the case of Goods to be collected by the Customer from the premises of the Supplier, at the time with the Supplier notifies the Customer that the Goods are available for collection;

In the case of Goods to be delivered by the Supplier to the Customer at an address specified by the Customer in the Order, at the time when the Customer is notified that the Goods are ready for delivery; and

In the case of Goods being installed by the Supplier, at the time that the Supplier notifies the Customer that the installation is complete.

Legal and beneficial title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:

the Goods; and/or

any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.

Until payment has been made by the Customer to the Supplier and title to the Goods has passed to the Customer, the Customer shall:

hold the Goods on a fiduciary basis as the Supplier’s bailee;

store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.9; and

give the Supplier such information relating to the Goods as the Supplier may require from time to time.

4 In the event that the Customer sells or transfers the Goods to a third party before legal and beneficial title has passed to them under these Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Supplier) shall be held by the Customer on behalf of the Supplier. The Customer shall ensure that such moneys are held separately from, and are in no way mixed with, any other’ moneys or funds, and that all moneys held on the Supplier’s behalf are identified as such.

The Supplier may, in accordance with the provisions of the Companies Act 2006, register any charge created by these Conditions.

The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Supplier, but if the Customer does so all money owing by the Customer to the Supplier shall (without prejudice to any other right or remedy of the Supplier forthwith) become due and payable.

If invoices remain unpaid the Supplier reserves the right to repossess any Goods in which the Supplier retains title , without notice. The Customer irrevocably authorises the Supplier to enter the Customer’s premises during normal business hours for the purpose of repossessing the Goods in which the Supplier retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-clause 10.3.

If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause

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.

For the purposes of clause 10.3, the relevant events are:

the Customer commits or permits any material breach of its obligations under these Conditions;

the Customer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with its creditors;

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;

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 other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a

solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(being a company) 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, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

(being an individual) the Customer is the subject of a bankruptcy petition or order;

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;

(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;

(being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;

a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;

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 10.9(a)to clause 10.9(j) (inclusive);

the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;

the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

(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.

SUPPLY OF SERVICES

The Supplier shall, in consideration of the fees being paid in accordance with the terms of payment, outlined at clause 14 supply the Services expressed in the Order, to the Customer, in accordance with the Specification in all material respects or as otherwise agreed under the terms of these Conditions.

The Supplier shall use all reasonable endeavours to meet any performance dates specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

The Supplier warrants to the Customer that the Services identified in the Order or otherwise agreed under these Conditions will be provided using reasonable care and skill.

CUSTOMER’S OBLIGATIONS

The Customer shall:

ensure that the terms of the Order is complete and accurate;

co-operate with the Supplier in all matters relating to the Services;

provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;

provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

prepare the Customer’s premises for the supply of the Services;

obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;

keep and maintain all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and

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):

the Supplier shall without limiting its other rights or remedies 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 to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 12.2; and

the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

PRICES

The prices for the Goods and Services shall be the price listed in the Supplier’s sales literature and/or published price list, as confirmed in the Order, current at the date of acceptance or such other price as may be agreed in writing by the Supplier and the Customer, or, if no price is quoted, the price set out in the Supplier’s published price list in force as the date of delivery.

Where the Supplier has quoted a price for the Goods or Services other than in accordance with the Supplier’s published price list the price quoted shall be valid for 30 days only or such lesser time as the Supplier may specify.

The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the costs of the Goods or Services to the Supplier that is due to:

any factor beyond the control of the Supplier (such as, without limitation, any foreign exchange fluctuation currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture);

any change in delivery dates, quantities or specifications for the Goods or Services which are 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.

Except as otherwise stated under the terms of any Order and unless otherwise agreed in writing between the Customer and the Supplier, all prices are exclusive of the Supplier charges for packaging and transport as specified in the Order.

The Supplier is duly registered for VAT with VAT registration number 700 3170 01. All amounts payable by the Customer in respect of Goods and/or Services under the Contract are inclusive of amounts in respect of value added tax chargeable for the time being (VAT) or sales or tax levies which are imposed or charged by any competent, fiscal authority in respect of Goods or Services. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services, as well as additional amounts in respect of sales or other tax levies imposed.

PAYMENT

All payments required to be made pursuant to these Conditions shall be made as stated on the relevant invoice, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.

The Supplier shall invoice the Customer for the Goods or Services on or at any time after completion of delivery the Goods or supply of the Services.

All payments shall be made to the Supplier as indicated on the invoice issued by the Supplier.

The Customer shall pay each invoice submitted by the Supplier:

within 30 days of the date of the invoice; and

in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 8% per cent per annum accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly. The Provider reserves the right to claim interest under the County Courts Act 1984.

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, without limiting its other

rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

The Supplier is not obliged to accept orders from any Customer who has not provided the Supplier with references satisfactory to the Supplier; if at any time the Supplier is not satisfied as to the creditworthiness of the Customer it may give notice in writing to the Customer that no further credit will be allowed to the Customer in which event no further goods will be delivered to the Customer, other than against cash payment and notwithstanding Clause 11.3 of these Conditions, all amounts owing by the customer to the Supplier shall be immediately payable in cash.

INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

All Supplier Materials are the exclusive property of the Supplier.

DATA PROTECTION AND DATA PROCESSING

Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.

The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).

Without prejudice to the generality of the clause, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.

Without prejudice to the generality of the clause, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:

(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause.

The Customer consents to the Supplier appointing any third-party processor of Personal Data under the Contract that it so wishes during the existence of the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.

Either party may, at any time on not less than 30 days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

CONFIDENTIALITY

A party (Receiving Party) 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 Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or

subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 17 shall survive termination of the Contract.

LIMITATION OF LIABILITY:

Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

fraud or fraudulent misrepresentation; or

breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

Subject to clause 18.1:

the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, express or implied term of these Conditions or Contract or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including any losses, damage, costs, expenses or other claims that may result from a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors; and

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, including losses caused by a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors shall not exceed the purchase price of the Goods supplied in the case of a supply of goods, or the annual maintenance costs paid by the Customer in the 12 months immediately preceding the breach complained of

3 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Customer, or its agent or employees.

Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.

The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.

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.

This clause 18 shall survive termination of the Contract.

TERMINATION

Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;

the other party 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;

the other party 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 other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

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 that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

the other party (being an individual) is the subject of a bankruptcy petition or order;

a creditor or encumbrancer of the other party 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;

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 other party (being a company);

a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;

a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 19.1(b) to clause 19.1(i) (inclusive);

the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or

the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

Without limiting its other rights or remedies, the Supplier may, at its sole discretion, either cease the supply of Goods and/or Services to the Customer, stop any Goods or Services at the time in transit, or terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party two months’ written notice.

Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Goods and/or Services under the Contract or any other contract between the Customer and the Supplier as well as suspend any Goods

or Services at the time in transit, if the Customer becomes subject to any of the events listed in clause 19.1(b)) to clause 19.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

CONSEQUENCES OF TERMINATION

On termination of the Contract for any reason:

the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

the Customer shall return all of the Supplier Materials and any Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, 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; and

clauses which expressly or by implication have effect after termination shall continue in full force and effect.

GENERAL

Warranties:

Warranties for Goods and/or Services are as dictated by the Terms and Conditions of the individual manufacturer.

) All warranties are given on the basis that Goods are installed and maintained correctly as per manufacturer’s instructions. Proof that the Goods have been installed and used correctly and that appropriate and effective routine maintenance has been carried out on the equipment may be required to validate the warranty.

) Any modifications or alterations made to the Goods without the Supplier’s prior written agreement may invalidate the Warranty.

) The original stated warranty period from the time of original purchase will continue to be maintained following any Warranty exchange or parts replacement.

Goods purchased for hire only carry no Warranty.

Force majeure:

For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to 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 network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

Neither party shall be liable to the other party and shall not be deemed in breach of its obligations under the Contract or these Conditions as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

The party subject to the Force Majeure Event shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.

If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 26 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

Entire Agreement

The Contract 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.

Assignment and subcontracting:

The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

Notices:

Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, or by email at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.

Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or 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 or electronic mail (email) on a Business Day prior to 4.00pm, at the time of transmission and otherwise on the next Business Day after transmission.

This clause21.5 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.

Waiver:

A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. 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.

No waiver by either party to enforce the performance of any provision in these Conditions shall constitute a waiver of the right to subsequently enforce that provision or any other provision of these Conditions. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

Severance:

If a court or any other 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 deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

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.

No partnership:

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

Third parties:

A person who is not a party to the Contract shall not have any rights under or in connection with it pursuant to the Contracts (Rights of Third Parties) Act 1999.

Variation:

Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.

Dispute Resolution:

Where any material dispute or difference relating to These Conditions or the Services arises between the Parties that matter shall be referred to the arbitration of a single arbitrator with appropriate qualifications and practical experience to resolve the particular dispute.

The arbitrator shall be agreed by the parties or, in the event of failure to agree, shall be appointed by the president for the time being of the Law Society of England and Wales

The arbitration shall take place in London and shall be in accordance with the Arbitration Act 1996 or any re-enactment or modification of that Act for the time being in force.

The parties shall promptly furnish to the arbitrator all information reasonably requested by him relating to the particular dispute, imposing appropriate obligations of confidence.

The parties shall require the arbitrator to use all reasonable endeavours to render his decision within 30 days following his receipt of the information requested or if this is not possible as soon thereafter as may reasonably be practicable. The Parties shall co-operate fully with the arbitrator to achieve this objective.

The Parties shall share the fees and expenses of the arbitrator equally. The decision of the arbitrator shall be final and binding upon the Parties.

Any and all obligations of the Parties which either expressly or by their nature continues beyond the termination, cancellation or expiration of the Contract shall survive termination.

Governing law and jurisdiction:

This 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.

Schedule 1 Processing, Personal Data and Data Subjects
Processing by the Provider
Scope: The Supplier may collect personal data from the Customer in the course of their interaction and for the purposes of fulfilling the Contract.
Nature: The personal data may include names, addresses, telephone numbers, job titles, email addresses and other contact information
Purpose of processing: The Supplier will use this information in the course of processing the Customer’s order or enquiry, and managing their account as well as fulfilling the Contract. Where the Supplier has the Customer’s consent, this personal information may be used to inform the Customer about other products and services that the Supplier thinks may be of interest.

The Supplier will only use personal data for the purposes stated above. It will take steps to periodically review the data to ensure that it remains accurate.

Duration of the processing: The Supplier will only retain it for as long as it is required for the purposes stated, or as required under any governing legislation and in accordance with the applicable time periods under the Data Protection Legislation including GDPR.

Types of personal data: Personal data may be stored in electronic format or paper format. The Supplier will keep all data secure. Premises upon which data is held will be secure. Where the Supplier uses third party Data Processors to process or store electronic data it will ensure that these data processors are fully compliant with their obligations under Data Protection Legislation including GDPR, are based within EU or countries or territories which have been awarded data adequacy status by the European Commission, and will only process or store the data for the purposes the Supplier have contracted upon.

The Supplier will not share the personal data with any other third party unless legally required to do so.

Categories of data subject: The Customer has the right to request a copy of the personal data the Supplier holds about them, and this copy can be obtained by request in writing to the Supplier’s Head Office at 17-19 Smeaton Close, Severalls Industrial Park, Colchester, Essex, CO4 9QY. If the Customer has cause to complain about the Suppliers handling of, or use of the data, or its refusal or inability to provide a copy of it, they may do so by contacting the Information Commissioners Office at Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF.