9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these conditions) the goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and be reasonably fit for use upon the Site or in the location if such details have been advised and accepted by
the Company. The warranty issued will vary according to the usage and intended location of the goods, as specified by the Buyer. The Company reserves the right to revoke any warranty where the Buyer, contrary to advice given by the Company, insists on a specification of Goods that
is deemed by the Company to be unsuitable for the intended usage and/or location as notified by the Buyer.
(a) Goods supplied for indoor use will be warranted for a minimum period of 12 months from date of invoice. The Company must be advised of the intended usage by the Buyer at the point of placing a Purchase Order with the Company for this warranty to be effective.
(b) Goods supplied for outdoor use will be warranted for a minimum period of 12 months from the date of invoice. The Company must be advised of the intended usage by the Buyer at the point of placing a Purchase Order with the Company for this warranty to be effective.
9.3 The Company shall not be liable for a breach of any of the warranties in condition 9.2 unless:
(a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit by the carrier, within 5 working days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods.
9.4 The Company shall not be liable for a breach of any of the warranties in condition 9.2 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
9.5 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with any of the warranties in condition 9.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided
that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the parts of such Goods which are defective to the Company.
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods.
10. Intellectual Property Rights
10.1 As between the Buyer and the Company, all Intellectual Property Rights and all other rights in the Deliverables and the Pre-existing Materials shall be owned by the Company. Subject to condition 10.2, the Company licenses all such rights to the Buyer free of charge and on a non-
exclusive, worldwide basis to such extent as is necessary to enable the Buyer to make reasonable use of the Goods and Deliverables. If the Contract terminates, this licence shall automatically terminate.
10.2 The Buyer acknowledges that, where the Company does not own any Pre-existing Materials, the Buyer’s use of rights in Pre-existing Materials is conditional on the Company obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will
entitle the Company to license such rights to the Buyer.
11. Confidentiality and the Company’s Property
11.1 The Buyer 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 Buyer by the Company, its employees, agents, consultants or subcontractors and any
other confidential information concerning the Company’s business or its products which the Buyer may obtain.
11.2 The Buyer may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Buyer’s obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
11.3 The Buyer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this condition 11.
11.4 The Buyer shall not use any such information for any purpose other than to perform its obligations under the Contract.
11.5 All materials, equipment and tools, drawings, specifications and data supplied by the Company to the Buyer (including Pre-existing Materials and the Company’s Equipment) shall, at all times, be and remain as between the Company and the Buyer the exclusive property of the
Company, but shall be held by the Buyer in safe custody at its own risk and maintained and kept in good condition by the Buyer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company’s written instructions or authorisation.
12. Limitation of Liability – The Buyer’s Attention Particularly Drawn to this Condition
12.1 Subject to condition 3 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of the Contract;
(b) any use made or resale by the Buyer of any of the Goods, the Deliverables or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or
omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
12.4 Subject to condition 12.2 and condition 12.3:
(a) The Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the
13.1 The Company may assign or sub-contract the Contract or any part of it to any person, firm or company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party suffers an Insolvency Event.
14.2 On termination of the Contract for any reason:
(a) the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
(b) the Buyer shall return all of the Goods, Company’s Equipment, Pre-existing Materials and Deliverables. If the Buyer fails to do so, then the Company may enter the Buyer’s premises and take possession of them. Until they have been returned or repossessed, the Buyer shall be solely
responsible for their safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
14.3 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
(a) condition 10;
(b) condition 11;
(c) condition 14; and
(d) condition 18.
15. Force Majeure
The Company shall have no liability to the Buyer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation)
strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company 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 contractors or subcontractors.
16.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability
or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or e-mail.
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to it’s registered office or to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
17.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax or e-mail on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
18. Governing Law and Jurisdiction
18.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
18.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Contract or its subject matter or formation (including non-contractual disputes or claims).