EV Products (T/A Subsidiary of Kromek plc) Standard Terms and Conditions of Sale

FRM LGL 1016
12.10.20 Rev1.0

  1. Terms and conditions of sale (goods and services)
    1. Interpretation

    The following definitions and rules of interpretation apply in these Conditions.

    Definitions and are not subject to modification or default substitution under the Commercial Code of any jurisdiction.  All such terms are deemed accepted and controlling unless the Supplier proposes alternative terms which are expressly accepted, in writing, by Supplier.

    1.1 Definitions:

    Business Day a day other than a Saturday, Sunday, or Federal bank holiday in the United States, when banks in FDIC insured banks are open for business.
    Commencement Date has the meaning given in clause 2.2.
    Conditions these terms and conditions as amended from time to time in accordance with clause 17.8.
    Contract the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
    Contract Year a 12-month period commencing with the Commencement Date or any anniversary of it.
    Control means the ability to direct the business affairs of the company and the expression change of control shall be construed accordingly.
    Customer the person or firm who purchases the Goods and/or Services from the Supplier.
    Defect any non-conformity of the Goods with the express terms of the Goods Specification resulting from circumstances existing in the Goods at the time of delivery.
    Deliverables the deliverables set out in the Order produced by the Supplier for the Customer (if any).
    Delivery Location the Supplier’s premises unless agreed otherwise.
    Force Majeure Event has the meaning given to it in clause 16.
    Goods the goods (or any part of them) set out in the Order.
    Goods Specification the specification for the Goods set out in the Supplier’s catalogue (together with any modification thereto made by agreement in writing between the Customer and the Supplier) or the specification for the Goods supplied by the Customer and agreed in writing by the Customer and the Supplier to be the Goods Specification, in each case including any relevant plans or drawings.
    Intellectual Property Rights patents, utility models, rights to inventions, copyright and related rights, common law rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, 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.
    Order the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or other written acceptance of the Supplier’s quotation as the case may be.
    Services the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
    Service Specification the description or specification for the Services provided in writing by the Supplier to the Customer.
    Supplier e.V Products Inc..
    Supplier Materials has the meaning given in clause 8.1.8.

     

    Interpretation:

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

    A reference to a party includes its successors and Supplier permitted assigns.

    A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

    Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term preceding those terms.

    A reference to writing or written includes email.

    1. Basis of contract

    2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.

    2.2 The Order shall only be deemed to be accepted when the Supplier issues written conditional acceptance of the Order which requires acceptance of these Conditions, at which point and on which date the Contract shall come into existence (Commencement Date).

    2.3 Any samples, drawings, descriptive matter, or advertising issued by the Supplier are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.

    2.4 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 law, trade custom, practice, or course of dealing.

    2.5 Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.

    2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified. For clarity, a conflict of forms shall not trigger what is commonly known as the “knock out rule” under the Uniform Commercial Code as adopted in any jurisdiction of the United States.  If Customer does not accept Supplier’s Conditions, then Customer must make such concerns plain to Supplier and there shall be no Contract absent a negotiated and documented adjustment to Supplier’s satisfaction.

    1. Goods

    3.1 The Goods are described in the Goods Specification.

    3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.

    3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

    1. Delivery of Goods

    4.1 The Supplier shall deliver the Goods FCA Delivery Location (Incoterms 2020 Rules) and each delivery of the Goods shall be accompanied by a delivery note unless stated otherwise in the relevant quotation.

    4.2 Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.

    4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or the absence of a complete or valid export end user undertaking applicable Export Control Office licence processing time.

    4.4 If the Supplier 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 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 for the Goods or any relevant instruction related to the supply of the Goods.

    4.5 If the Customer fails to take delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:

    4.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am local time on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and

    4.5.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

    4.6 If 10 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.

    4.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

    1. Quality of Goods

    5.1 The Supplier warrants that the Goods shall be free from any Defect for 12 months from the date of delivery.

    5.2 The following shall not be Defects:

    5.2.1 non-conformity resulting from normal wear and tear,

    5.2.2 non-conformity resulting from excessive strain,

    5.2.3 non-conformity resulting from faulty or negligent handling; non-compliance with instructions or recommendations in operation or maintenance and other documents;

    5.2.4 non-conformity resulting from installation, modification, repair, or commissioning not carried out by the Supplier,

    5.2.5 non-conformity resulting from non-reproducible software errors; and

    5.2.6 non-conformity resulting from defects which do not significantly impair the use of the Goods.

    5.3 The Customer shall notify the Supplier in writing of any Defects as soon as reasonably practicable. Claims for apparent Defects shall be excluded where the Customer has failed to do so.

    5.4 Upon such written notification, the Supplier shall, at its option, remedy a Defect by repair, replacement, or re-performance within a reasonable period having regard to the nature of the Defect. If an item is replaced, that item shall become the property of the Supplier.

    5.5 It is agreed that any Goods to be returned under the terms of this clause 5 may be shipped to the Supplier by the Customer or directly by the Customer’s customers.

    5.6 The transportation charges for all Goods returned to the Supplier under this warranty shall be borne by the Supplier.  The Supplier shall also pay the transportation charges involved in the return of warranted Goods to the Customer and/or to end users as the Supplier may decide by discussion with the Customer.

    5.7 If the Supplier transports the Goods in accordance with clause 5.11 and/or carries out remedial work and it is ultimately not established that there is or was a Defect, the Customer shall pay for such transport and/or remedial work including any diagnostic, investigative or administrative costs immediately on receipt of invoice from the Supplier.

    5.8 The Supplier further warrants that: (i) the Goods are free from all liens and encumbrances; and (ii) the Supplier has good title to the Goods and is legally entitled to transfer, and will transfer, ownership of the Goods to the Customer in accordance with these Conditions. There shall be no other warranties, express, statutory or otherwise, including any implied warranty of suitability or fitness of purpose or damage or misuse by the Customer or any end user, or any other obligation on the part of Kromek with respect to the Goods.  This clause shall not limit or exclude any liability of the Supplier which by law cannot be excluded.

    5.9Where third party goods or services are incorporated into any Goods, such goods or services are not warranted by the Supplier hereunder however the Supplier shall use reasonable endeavours to assign the benefit of the same to the Customer to the extent to which this is permitted by such third party.

    1. Title and risk

    6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

    6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.

    6.3 Until title to the Goods has passed to the Customer, the Customer shall:

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

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

    6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;

    6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.2.2 to clause 14.2.4; and

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

    6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:

    6.4.1 it does so as principal and not as the Supplier’s agent; and

    6.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

    6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.2.2 to clause 14.2.4, then, without limiting any other right or remedy the Supplier may have:

    6.5.1 the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and

    6.5.2the Supplier may at any time:

    6.5.2.1 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

    6.5.2.2 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.

    1. Supply of Services

    7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.

    7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, the Service Specification and/or the Goods Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

    7.3 The Supplier reserves the right to amend the Service Specification 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.

    7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

    1. Customer’s obligations

    8.1 The Customer shall:

    8.1.1 ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;

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

    8.1.3 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 to provide the Services;

    8.1.4 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 complete and accurate in all material respects;

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

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

    8.1.7 comply with all applicable laws, including health and safety laws;

    8.1.8 keep 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;

    8.1.9 comply with any additional obligations as set out in the Service Specification and the Goods Specification;

    8.1.10 comply with all applicable UK and US export controls and regulations and co-operate at all times and in a timely manner with the Supplier in the Supplier’s attempts to seek or obtain export licenses for Goods or Services by promptly providing any information requested by the Supplier in respect of the same;

    8.1.11 provide to the Supplier in a timely manner a complete and accurate export end under undertaking form for the Goods as requested by the Supplier; and

    8.1.12 not decompile, modify, backup, copy, adapt or test any software which forms part of any Goods (except to the extent permitted to do so by law).

    8.2 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):

    8.2.1without 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;

    8.2.2 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 8.2; and

    8.2.3 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.

    1. Charges and payment

    9.1 The price for Goods:

    9.1.1 shall be the price set out in the Suppliers quotation or, if no price is quoted, the price set out in the Supplier’s published price list as at the Commencement Date; and

    9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods incurred by the Customer (if any), all of which shall be invoiced to the Customer (but the Supplier shall not be liable for any such costs which are for the Customer pursuant to FCA Delivery Location (Incoterms 2020 Rules), all of which shall be borne and paid by the Customer).

    9.2 The charges for Services shall be as set out in the Supplier’s quotation:

    9.2.1 the charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the quotation;

    9.2.2 the Supplier’s daily fee rates for each individual person are calculated on the basis of a 7.5 hour day worked on Business Days;

    9.2.3 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

    9.3 The Supplier reserves the right to:

    9.3.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index;

    9.3.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:

    9.3.2.1 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs including any arising as a result, in whole or in part, of the UK ceasing to be a member of the European Union);

    9.3.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

    9.3.2.3 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.

    9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of monthly unless otherwise agreed in any relevant quotation.

    9.5 The Customer shall pay each invoice submitted by the Supplier:

    9.5.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and

    9.5.2 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.

    9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). 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 or Goods at the same time as payment is due for the supply of the Services or Goods.

    9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 14 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

    9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

    1. Intellectual property rights

    10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) and the Goods shall be owned by the Supplier.

    10.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables and any written instructions or operation manuals for Goods (in each case excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables and using the Goods (as the case may be) in its business.

    10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.

    10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services and/or Goods to the Customer.

    1. Data protection

    Both parties will comply with all applicable requirements of all applicable data protection and privacy legislation in force from time to time in the USA and UK including the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018, the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended (UK Data Protection Legislation). This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the UK Data Protection Legislation.

    1. Confidentiality

    12.1 Each party undertakes that it shall not at any time during the Contract, and for a period of 5 years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.

    12.2 Each party may disclose the other party’s confidential information:

    12.2.1 to its employees, officers, representatives, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and

    12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

    12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

    1. Limitation of liability

    13.1 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

    13.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

    13.3 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

    13.3.1 death or personal injury caused by negligence;

    13.3.2 fraud or fraudulent misrepresentation; and

    13.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

    13.4 Subject to clause 13.3, the Supplier’s total liability to the Customer in respect of all breaches of duty occurring within any Contract Year shall not exceed the lesser of:

    13.4.1 all sums paid by the Customer and all sums payable under the Contract in respect of goods and services actually supplied by the Supplier, whether or not invoiced to the Customer in the Contract Year in which the breaches occurred; and

    13.4.2  $300,000.

    13.5 Subject to clause 13.3, the following types of loss are wholly excluded:

    13.5.1.1 loss of profits;

    13.5.1.2 loss of sales or business;

    13.5.1.3 loss of agreements or contracts;

    13.5.1.4 loss of anticipated savings;

    13.5.1.5 loss of use or corruption of software, data or information;

    13.5.1.6 loss of or damage to goodwill; and

    13.5.1.7 indirect or consequential loss.

    13.6 The Supplier has given commitments as to compliance of the Goods and Services and no further warranties or assurance are implied or inferred.

    13.7 This clause 13 shall survive termination of the Contract.

    1. Termination

    14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 3 months’ written notice.

    14.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

    14.2.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 28 days after receipt of notice in writing to do so;

    14.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

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

    14.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

    14.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect and without liability on the part of the Supplier by giving written notice to the Customer if:

    14.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or

    14.3.2 there is a change of control of the Customer; or

    14.3.3 if sales of Goods are prohibited or otherwise prevented or delayed by UK and/or US export restrictions or sanctions.

    14.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2.2 to clause 14.2.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

    1. Consequences of termination

    15.1 On termination of the Contract:

    15.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods 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;

    15.1.2 the Customer shall return all of the Supplier Materials and any Deliverables or 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.

    15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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.

    15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

    1. Force majeure

    Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).

    1. General

    17.1 Assignment and other dealings

    17.1.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

    17.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

    17.2 Notices.

    17.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

    17.2.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

    17.2.1.2 sent by email to the address specified in the Order (in the case of the Customer) or the Supplier’s quotation (in the case of the Supplier) (or such other email address as may be notified to the other party in accordance with this clause).

    17.2.2 This clause 17.2 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.

    17.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 17.3 shall not affect the validity and enforceability of the rest of the Contract.

    17.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

    17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

    17.6 Entire agreement.

    17.6.1 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.

    17.6.2 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

    17.6.3 Nothing in this clause shall limit or exclude any liability for fraud.

    17.7 Third party rights.

    17.7.1 Unless it expressly states otherwise, the Contract does not give rise to any rights  of Third Parties to enforce any term of the Contract.

    17.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

    17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).  In all matters of document conflict Supplier’s conditions shall apply and control.

    17.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Supplier’s State.

    17.10 Jurisdiction. Each party irrevocably agrees that the courts of Supplier’s State shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formatio

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