TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES
Terms and conditions for the supply of goods here.
Affiliate: the Supplier’s holding company and ultimate holding company and each of its subsidiary companies and joint ventures and it’s holding company’s and ultimate holding company’s subsidiary companies and joint ventures as at the Commencement Date or as the same may vary from time to time, “holding company” and “subsidiary” having meanings given to them in section 1159 of the Companies Act 2006.
Agreement: this agreement as amended from time to time in accordance with clause 4.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date nominated as the commencement date on the Order.
Control: has the meaning given in the Corporation Tax Act 2010, s1124 and Controls and Controlled shall be interpreted accordingly.
Customer: the person or firm who purchases the Services from the Supplier.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Good Industry Practice: the procedures and standards which would reasonably be expected to be met by a reputable supplier providing the Services.
Initial Term: the initial term for which the Services will be provided to the Customer by the Supplier as set out in the Order.
Intellectual Property Rights: copyright, rights related to copyright such as moral rights and performers’ rights, patents, rights in inventions, rights in Confidential Information, know-how, trade secrets, trade-marks, geographical indications, service marks, trade names, design rights, rights in get-up, database rights, databases, domain names, business names, rights in computer software, the right to sue for infringement, unfair competition and passing off, and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing.
Order: the Customer's order for the Services, as set out in the Order.
Performance Location: any location specified in the Order at which the Supplier shall perform, or procure the performance of, the Services.
Services: the support services and any other services specified in the Order or as otherwise agreed in writing.
Supplier: Peak Scientific Instruments Limited a company incorporated in Scotland under number SC175368 whose registered office is at Fountain Crescent, Inchinnan Business Park, Inchinnan, PA4 9RE.
Supplier Material: any material owned by the Supplier or its Affiliates relating to the Services (and any modifications to that material).
Supplier Personnel: all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their subcontractors who are engaged in the performance of the Services from time to time.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) 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.
(d) 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.
(e) A reference to writing or written includes fax and email.
2.1 This Agreement governs the Supplier’s performance of the Services.
2.2 The Customer hereby engages the Supplier to perform the Services in accordance with this Agreement.
3 SUPPLIER OBLIGATIONS
3.1 The Supplier shall perform the Services as set out in the Order.
3.2 The Supplier shall use its reasonable endeavours to perform the Services in accordance with any commencement or end dates specified for performance as set out in the Order. Any Services which do not have specified commencement or end dates shall be performed by the Supplier within a reasonable period of time.
3.3 Where the Supplier deems itself unable to perform the Services in whole or in part for any reason the Supplier shall notify the Customer as soon as reasonably practicable and shall refund the price of the affected Services in full. The foregoing shall be the Customers sole and exclusive remedy for a failure by the Supplier to perform the Services in whole or in part under this Agreement.
3.4 The Supplier shall not be liable for any delay in the performance of the Services caused by:
3.4.1 the Customer’s failure to make the Performance Location available;
3.4.2 the Customer’s failure to prepare the Performance Location in accordance with the Supplier’s instructions;
3.4.3 the Customer’s failure to provide the Supplier with adequate instructions for performance of the Services;
3.4.4 for any costs or losses sustained by the Customer as a result of any suspension of the Services;
3.4.5 the Customer’s failure to comply with the provisions of clause 1; or
3.4.6 Force Majeure.
4 CUSTOMER OBLIGATIONS
4.1 The Customer shall at all times and in all respects:
4.1.1 perform its obligations in accordance with the terms of this Agreement;
4.1.2 co-operate with the Supplier in all matters arising under this Agreement or otherwise relating to the performance of the Services;
4.1.3 make the Performance Location accessible to the Supplier and the Supplier Personnel as may be necessary for the Supplier to perform the Services and otherwise comply with its obligations under this Agreement;
4.1.4 inform the Supplier in a timely manner of any matters (including any health, safety or security requirements) which may affect the provision of the Services;
4.1.5 ensure that all tools, equipment, materials or other items provided to the Supplier for the provision of the Services are suitable for the performance of the Services, in good condition and in good working order;
4.1.6 obtain and maintain all necessary licences, permits and consents required to enable the Supplier to perform the Services and otherwise comply with its obligations under this Agreement; and
4.1.7 to the fullest extent permitted by law and provided it is not the Supplier’s regulatory responsibility, dispose of all waste and parts resulting from the Services.
4.2 Where the Supplier has any concerns regarding the health and safety of the Customers premises it shall notify the Customer as soon as reasonably practicable and the Services shall be suspended in accordance with clause 6.
5.1 The Supplier warrants that the Services shall be performed with reasonable care and skill and in accordance with Good Industry Practice during the Initial Term.
5.2 The Customer warrants that it has the right, power and authority to enter into this Agreement and grant to the Supplier the rights (if any) contemplated in this Agreement.
5.3 Subject to the provisions of clause 4, if the Customer gives written notice to the Supplier within five Business Days of completion of the Services that some or all of the Services do not comply with clause 5.1, the Supplier shall, at its option, remedy or re-perform the Services, or refund the price of the Services in full.
5.4 The Supplier shall not be liable for any failure of the Services to comply with the provisions of clause 1 where the same arises directly or indirectly and whether in whole or in part as a result of:
5.4.1 a breach by the Customer of any of its obligations under this Agreement;
5.4.2 an event of Force Majeure; or
5.4.3 any design, specification or requirement of the Customer.
5.4.4 Except as set out in this clause 5 the Supplier gives no warranty and makes no representations in relation to the Services;
5.4.5 The provisions of this clause 5 set out the Customer’s sole and exclusive remedies (howsoever arising, whether in contract, tort, negligence or otherwise) for any breach of clause 1 or for any other error or defective performance of the Services.
6 SUSPENSION OF SERVICES
6.1 If the Supplier is prevented or delayed in performing the Services by any cause attributable to the Customer, the Supplier (without prejudice to its other rights):
6.1.1 may suspend performance of the Services until the Customer remedies its default; and
6.1.2 may charge the Customer (and the Customer shall pay under this Agreement) costs or losses incurred by the Supplier arising from the Customer’s default.
7 PRICE AND PAYMENT
7.1 In consideration of the Supplier’s provision of the Services in accordance with the provisions of this Agreement the Customer shall pay the fees in accordance with this clause 7 and the relevant Order.
7.2 The fees for the Services and the frequency of each invoice shall be set out in the Order.
7.3 The fees for the Services:
7.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 [excludes any out-of-pocket expenses (including travelling expenses) incurred by the Supplier and the Supplier Personnel in the proper provision of the Services.]
7.4 The Customer shall pay each invoice submitted by the Supplier:
7.4.1 within thirty (30) days of the date of the invoice or as otherwise specified in the Order; and
7.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
7.4.3 time for payment shall be of the essence under this Agreement.
7.5 The Supplier reserves the right in its absolute discretion to reduce the period of any advance payment terms in the event that:
7.5.1 The Customer’s credit rating (as measured by the Supplier through Creditsafe UK Limited or any other industry standard credit rating system) falls below fifty out of one hundred; and/or
7.5.2 The Supplier has reasonable concerns regarding the financial viability of the Customer which the Customer is unable to address to the reasonable satisfaction of the Supplier.
7.6 If the Customer fails to make a payment due to the Supplier under this Agreement by the due date, then, without limiting the Supplier's remedies under clause 11 (Termination), the Customer shall pay simple interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6 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%.
7.7 All amounts due under this Agreement 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).
8 INTELLECTUAL PROPERTY RIGHTS
8.1 All right, title and interest (including all Intellectual Property) in any Supplier Material shall (subject to any rights of any third party) belong to the Supplier. The Supplier Material including without limitation all software, programs, documents, information, ideas, concepts, know-how, techniques and other materials, things or items (including all Intellectual Property therein) supplied or provided by the Supplier shall be and shall remain the exclusive property of the Supplier and the Customer shall acquire no right, title and interest in or to the same.
9 LIMITATION OF LIABILITY
9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation.
9.3 Subject to clause 2, the Supplier's total liability to the Customer shall not exceed the fees paid or payable under the Order in the year in which the relevant claim arose.
9.4 Subject to clause 2, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
9.5 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire twelve (12) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.6 This clause 9 shall survive termination of this Agreement.
10.1 During the Initial Term the Supplier shall maintain adequate insurance for the Services being provided.
11.1 This Agreement shall commence on the Commencement Date and shall continue unless terminated in accordance with clause 3.
11.2 [Clause Deleted]
11.3 Without limiting its other rights or remedies, the Supplier may terminate this Agreement and/or any Order with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of being notified in writing to do so;
(b) the Customer 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;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) 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 this Agreement has been placed in jeopardy.
11.4 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under this Agreement or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 3(b) to clause 11.3(d), 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 Agreement on the due date for payment.
11.5 Without limiting its other rights or remedies, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment.
11.6 On termination of this Agreement and/or any Order (as applicable) 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 the Services supplied or parts previously purchased by the Supplier as part of the Services offering but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
11.7 Termination or expiry of this Agreement, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
11.8 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
12.1 Assignment and other dealings
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Agreement.
(b) The Supplier may perform any of its obligations and exercise any of its rights granted under this Agreement through any Affiliate.
(c) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement without the prior written consent of the Supplier.
(a) Each party undertakes that it shall not at any time during this Agreement and for a period of 5 years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party and its Affiliates, except as permitted by clause 2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
12.3 Entire agreement
(a) This Agreement 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.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of this Agreement is deemed deleted under this clause 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a) Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
(i) 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);
(ii) or sent by email to the address specified in the Order.
(b) Any notice or other communication shall be deemed to have been received
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the second Business Day after posting; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.8 Third party rights
(a) Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
(b) Notwithstanding clause 8(a) the Affiliates of the Supplier shall have the right to enforce the provisions of this Agreement.
(c) The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
12.9 Governing law
This Agreement, 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 England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.